                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

PRESSLEY B. ALSTON,                            :
                                               :
                       Plaintiff,              :       Civil Action No.:    09-1397 (RMU)
                                               :
                       v.                      :       Re Document No.:     25
                                               :
FEDERAL BUREAU OF                              :
INVESTIGATION,                                 :
                                               :
                       Defendant.              :

                                    MEMORANDUM OPINION

GRANTING THE DEFENDANT’S MOTION TO VACATE THE AUGUST 20, 2009 ORDER GRANTING
              THE PLAINTIFF LEAVE TO PROCEED IN FORMA PAUPERIS

                                       I. INTRODUCTION

       This matter comes before the court on the defendant’s motion to vacate the court’s

August 20, 2009 order, which granted the pro se plaintiff leave to proceed in forma pauperis

(“IFP”). As elaborated below, the court determines that the plaintiff has on three or more prior

occasions, while incarcerated, brought an action in a court of the United States that was

dismissed on the grounds that it was frivolous or failed to state a claim upon which relief may be

granted. In accordance with 28 U.S.C. § 1915(g) (the “three strikes rule”), the court grants the

defendant’s motion to vacate the August 20, 2009 order and orders that the plaintiff pay the

filing fee in order to proceed with his action or suffer dismissal.



                     II. FACTUAL & PROCEDURAL BACKGROUND

       The plaintiff, a pro se litigant currently incarcerated in Florida, commenced this action

against the Federal Bureau of Investigation (”FBI”), seeking redress under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. Compl. at 1. The court granted him leave to proceed

IFP on August 20, 2009. 1 Minute Order (August 20, 2009). The defendant now asks the court

to vacate that order, arguing that at least three actions previously commenced by the plaintiff

have been dismissed and constitute strikes under the three strikes rule of the Prison Litigation

Reform Act (“PLRA”), 28 U.S.C. § 1915(g). Def.’s Mot. at 1. To date, the plaintiff has failed to

respond to the defendant’s motion. With this motion ripe for adjudication, the court turns to the

applicable legal standard and the government’s arguments.



                                           III. ANALYSIS

                              A. Legal Standard for PLRA Strikes

       The PLRA “limits courts’ discretion to grant [IFP] status to prisoners with a track record

of frivolous litigation.” Thompson v. Drug Enforcement Admin., 492 F.3d 428, 431 (D.C. Cir.

2007) (citing 28 U.S.C. § 1915(g)). This provision, commonly referred to as the three strikes

rule, requires that the court deny a prisoner’s motion to proceed under IFP status if he has “on 3

or more prior occasions, while incarcerated or detained in any facility, 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.” 28 U.S.C. § 1915(g); see

also Thompson, 492 F.3d at 430 (providing a thorough analysis of the three strikes rule). A

dismissal, however, does not constitute a strike for purposes of the rule if “at least one claim

within an action or appeal falls outside section 1915(g).” Thompson, 492 F.3d at 432. In other

words, in order to constitute a strike, every claim in the dismissed action must have been


1
       Although the defendant asks that the court vacate its “Order . . . of January 13, 2010,” Def.’s Mot.
       at 1, it is clear that the subject of the defendant’s motion is the court’s August 20, 2009 order.


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dismissed as frivolous, malicious or for failure to state a claim. Id.

        The defendant carries the initial burden of producing evidence challenging a prisoner’s

IFP status. Id. at 435-36. The court may, however, take judicial notice of evidence “[w]hen [it

is] readily available.” Id. at 436. Once such evidence is offered, “the ultimate burden of

persuasion shifts back to the prisoner to explain why the past dismissals should not count as

strikes.” Id. at 436.

        A prisoner may also show that he is exempt from the three strikes provision because his

case falls under the “imminent danger exception.” Mitchell v. Fed. Bureau of Prisons, 587 F.3d

415, 420 (D.C. Cir. 2010). To qualify under this exception, the prisoner must show that the

action is connected to the imminent danger, Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir.

2009), and that it relates to the claim which the defendant seeks to dismiss, Mitchell, 587 F.3d at

420. In evaluating whether the imminent danger exception applies, a court is limited “only to the

documents attesting to the facts at [the] time” that a prisoner filed his complaint. Id.; see also

Ibrahim v. Dist. of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006).

                               B. The Plaintiff Has Three Strikes

                                           1. Strike One

        In Alston v. Jacksonville Sheriff’s Office, Civ. No. 3:02-363 (M.D. Fla. April 29, 2002)

(Order), the Middle District of Florida dismissed the plaintiff’s 28 U.S.C. § 1983 (“§ 1983”)

action because the plaintiff failed to state a claim against any of the named defendants. See

Def.’s Notice, Ex. 1 (“Alston I”) at 4 (noting that “the plaintiff has alleged no causal connection

between any of the named Defendants and any constitutional deprivation” and indicating that

such causal connection is an “essential element” of a § 1983 claim). Although the Alston I court

also relied on the Eleventh Amendment’s immunity for state actors to dismiss the claims against


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certain defendants, it is clear from the dismissal order that immunity constituted as alternative

grounds for dismissal. Id. Because the order indicates that the plaintiff’s entire action was

dismissed for failure to state a claim, this dismissal constitutes the plaintiff’s first strike. Gay v.

Suter, 2008 WL 2628435, at *1 (D.D.C. June 30, 2008) (counting as a strike a dismissal based

on frivolousness and, in the alternative, the defendant’s immunity from suit).

                                             2. Strike Two

        In Alston v. U.S. Dist. Court, M.D. Fla, Jacksonville Div., et al., Civ. No. 3:02-364 (M.D.

Fla. April 29, 2002) (Order), the court again dismissed the plaintiff’s action because it was clear

from his complaint that he could not show an essential element of a § 1983 action. See Def.’s

Notice, Ex. 2 (“Alston II”) at 3 (noting that it was “clear that both named Defendants do not and

were not acting under color of state law,” which the court notes is an “essential element” of a §

1983 claim). Because the Alston II court dismissed the action due to the plaintiff’s failure to

state a claim, the dismissal counts as the plaintiff’s second strike. 28 U.S.C. § 1915(g).

                                            3. Strike Three

        In Alston v. Glover, Civ. No. 03-1851 (D.D.C. Oct. 23, 2003) (Mem. Order) (“Alston

III”), 2 the plaintiff requested that “the court review his criminal and post-conviction proceedings

conducted in the Middle District of Florida” and award him damages. Alston III at 1. The Alston

III court noted that the claim for damages was “not cognizable without a showing or at least an

allegation . . . that his conviction ha[d] been invalidated by reversal on direct appeal,

expungement by executive order, declaration of invalidity by a state tribunal authorized to make


2
        Although this case was not referenced in the defendant’s motion, the court is permitted to rely on
        any evidence that is “readily available.” Thompson, 492 F.3d at 436 (noting that either the
        defendant or the court can produce evidence challenging the plaintiff’s IFP status).



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such determination, or a federal court’s issuance of a writ of habeus corpus.” Alston III at 1-2

(noting that Heck v. Humphrey requires that the plaintiff must prove that his conviction has

already been overturned before the plaintiff could bring his civil suit (citing Heck v. Humphrey,

512 U.S. 477, 486-87 (1994))).

        “A dismissal under Heck is considered a basis for assessing a “strike” for purposes of 28

U.S.C. § 1915(g).” Jones v. Lieber, 2010 WL 1958127, at *1, n.1 (D.D.C. May 13, 2010) (citing

Reese v. D.C. Metro. Police, 2001 WL 410449, at *1 (D.C. Cir. Mar. 15, 2001)). Indeed, the

Circuit itself has dismissed an appeal as frivolous and counted such the dismissal as a strike

where the appellant did not conform to the requirements mandated by Heck. Reese, 2001 WL

410449, at *1; see also Hazel v. Reno, 20 F. Supp. 2d 21, 24 (D.D.C. 1998) (concluding that a

complaint “barred by Heck” is appropriately dismissed as frivolous). Because the Alston III

court relied on § 1915A(b)(1) 3 and Heck in dismissing the plaintiff’s claim, the court concludes

that Alston III counts as the plaintiff’s third strike. 4 Accordingly, the plaintiff has three strikes

under § 1915(g), and because the plaintiff does not allege that he is in any imminent danger


3
        The Alston III court, in a typographical error, cites 28 U.S.C. § 1915A(b)(2) as a ground for
        dismissal. See Alston v. Glover, Civil Action No. 03-1851 (D.D.C. October 23, 2003) (“Alston
        III”). Section 1915A(b)(2) allows for dismissal if the plaintiff seeks a monetary award from a
        defendant who is clearly immune from relief. 28 U.S.C. § 1915A(b)(2). Alston III, however,
        contained no discussion of immunity. See generally Alston III. Instead, it is clear that the court
        intended to dismiss pursuant to 28 U.S.C. § 1915A(b)(1), which concerns dismissal for failure to
        state a claim. See Alston III at 1 (noting that the plaintiff’s claim was “not cognizable” without a
        showing as required by Heck).
4
        It appears that the plaintiff is an abusive filer. A search on the Public Access to Court Electronic
        Records (“PACER”) service reveals that the plaintiff has filed fifty-two cases in the past ten
        years. Butler v. Dep’t of Justice, 492 F.3d 440, 444 (D.C. Cir. 2007) (noting that prisoners who
        repeatedly file as some sort of “past time” may be stripped of their IFP privileges). The court
        also takes note that the Middle District of Florida has repeatedly held that the plaintiff has
        exhausted his strikes under the PLRA. See e.g., Alston v. Florida, Civ. No. 3:05-11 (M.D. Fla.
        Jan. 7, 2005) (Order); Alston v. Federal Bureau of Prisons, Civ. Action No. 3:04-197 (M.D. Fla.
        May 24, 2004) (Order); Alston v. Glover, No. 3:02-cv-399 (M.D. Fla. May 1, 2002) (Order).


                                                     5
related to his FOIA action, the court strips him of his IFP status.



                                       IV. CONCLUSION

       For the foregoing reasons, the court grants the defendant’s motion to vacate the order

granting the plaintiff leave to proceed IFP. Within 30 days of this Order, plaintiff shall pay to

the Clerk of Court the filing fee of $350.00 to maintain this action or suffer dismissal of the case.

An Order consistent with this Memorandum Opinion is separately and contemporaneously issued

this 2nd day of November, 2010.


                                                               RICARDO M. URBINA
                                                              United States District Judge




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