UNITED STATES DISTRICT COURT
FOR THE DISTRICT ()F COLUMBIA

WALLACE DEEN-MITCHELL , )
)
Plain¢iff, )
)
v. ) Civil Action No. 09-2069 (RJL)

)
HARLEY G. LAPPIN et al., )
)
Defendants. )

) d')._.\

MEMORANDU AND ORDER
June , 2010

Defendants move to reconsider the Order of Novcmber 4, 2009, granting plaintiff s
motion to proceed in forma pauperis Defendants contend that plaintiff is barred from
proceeding in forma pauperis under the three-strikes provision of the Prison Litigation Reform
Act, which states as foll0ws:

In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated . . . brought an action or appeal
in a court of the United States that was dismissed on the grounds that it

is frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical

injury.

28 U.S.C. § 1915(g). Such dismissals are authorized by 28 U.S.C. § 1915 (e)(2) and § 19l5A,
the latter of which requires the screening of prisoners’ civil complaints and, if appropriate, the
immediate dismissal of such complaints. Defendants have the burden of "produc[ing] evidence
capable of showing that the district court dismissed the case on section 1915(g) grounds."
Thompson v. Drug Enforcemem Admz'rz., 492 F.3d 428, 436 (D.C. Cir. 2007). "Unexplained
dismissals," id. at 435, and those based on grounds not listed in section 191 S(g) do not suffice in
this circuit. See id. at 439 (declining "to treat all section 1915A dismissals as presumptive

strikes.").

Defendants have not established the requisite number of strikes. They correctly identify
two cases as qualifying strikes. See Reply Mem. [Dkt. No. 17], Ex. A (Mz'tchell v. Color Lab,
93-4408 (AJL); Ex. C (Mitchell v. Ola’s, 99-1338 (TPJ)). However, the docket of the third case,

Ex. B (Milchell v. Runyon, 95-1258 (JR)), reflects a dismissal in July 1995 under then-28 U.S.C.

§ 1915(d) that does not specify the dismissal ground. Section 1915(d) authorized "[t]he court . . .

[to] dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is
frivolous or malicious." 28 U.S.C. § 1915(d) (l994). Defendants have not provided a copy of
the ruling and the docket summary does not rule out a dismissal based on an untrue allegation of
poverty, which is "a reason not covered by section 1915(g)."l Thompson, 492 F.3d at 439. In
addition, the Court declines defendants’ invitation to exercise its "discretion to find that Plaintiff
is an abusive filer and revoke his IFP status," Reply at 2, based on plaintiff s filing of "at least 19
actions in several district courts since [his incarceration] in 1990." Defs.’ Mot. at 4. A search of
this Court’s dockets reveals that over a span of eighteen years, plaintiff filed twelve cases here,
three of which were habeas actions and just three of which were dismissed sua sponte prior to
assignment to a district judge. Such a "pattern of filing falls substantially short of being
abusive." Thompson, 492 F.3d at 439 (citing Buz‘ler v. Dep ’t of Justz`ce, 492 F.3d 440, 446-47
(D.C. Cir. 2007)). Accordingly, it is

ORDERED that defendants’ motion to reconsidqr the grant of in forma pauperis status

[Dkt. No. 11] is DENIED. /< z § d

RICHAKQ,!I. LEoN
United States District Judge

' Defendants provide a 2009 dismissal order issued by the Middle District of Florida
based not on section 191 5(g) but rather on plaintiffs lack of candor about his filing history.
Defs.’ Mot., Ex. B. Thus, an earlier dismissal based on plaintiffs untruthfulness is not out of the
realm of possibility.

