United States District Court, S.D. Indiana, Terre Haute Division
PHILIP M. SEBOLT, Plaintiff,
TYNDALL Corr. Officer, MONETT Corr. Officer, UNKNOWN DEFENDANT #1, YOUNG Lieutenant, WASSON Counselor, ROYER Unit Mger., in their individual capacities, Defendants.
ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS, ASSESSING INITIAL PARTIAL FILING FEE, SCREENING AND
DISMISSING COMPLAINT, AND DIRECTING PLAINTIFF TO SHOW
Patrick Hanlon United States District Judge
September 5, 2019, plaintiff Philip M. Sebolt, an inmate of
the Federal Bureau of Prisons, filed this action against
several officials at the Federal Correctional Complex in
Terre Haute, Indiana. He asserts claims pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), and seeks in forma pauperis status. The
Court makes the following rulings.
In Forma Pauperis Status
filed his complaint on September 5, 2019, Mr. Sebolt did not
pay the filing fee. On initial review of the filing, the
Court learned that Mr. Sebolt had been previously prohibited
from proceeding in forma pauperis in federal court
civil actions because he had on three or more prior occasions
filed actions that were dismissed for failure to state a
claim upon which relief can be granted, frivolous, or
malicious. 28 U.S.C. § 1915A. This Court gave Mr. Sebolt
notice of his § 1915(g) status and the four cases upon
which it was based in Seabolt v. Federal Bureau of
Prisons, No. 2:18-cv-00088-WTL-DLP (S.D. Ind. March 2,
Court again notified Mr. Sebolt that he was not eligible for
in forma pauperis status in an Order filed September
6, 2019, and directed payment of the filing fee no later than
October 8, 2019. Dkt. 3.
Sebolt did not meet the October 8, 2019, deadline, but on
October 22, 2019, he filed a motion for leave to proceed
in forma pauperis. Dkt. 5. In this motion, Mr.
Sebolt contends he was improperly assessed strikes in two of
the four cases relied on by the Court in No. 2:18-cv-00088,
leaving him with only two strikes, and that he is therefore
eligible for in forma pauperis status. Id.
four strikes listed in the Court's order in case number
(1) Sebolt v. Fed. Bureau of Prisons, No.
1:14-cv-2797 (N.D. Ill. June 4, 2014) (dismissing action for
failure to state a claim)
(2) Sebolt v. Lariva, No. 2:15-cv-00353-WTL-MPB
(S.D. Ind. May 23, 2017) (dismissing action for failure to
state a claim)
(3) Sebolt v. Pindelski, No. 1:17-cv-01212-AJT-MSN
(E.D. Va. Nov. 16, 2017) (dismissing action for failure to
state a claim)
(4) Sebolt v. United States, No. 1:17-cv-03866 (N.D.
Ill. Feb. 15, 2018) (dismissing action for failure to state a
instant motion, Mr. Sebolt argues that the first case, from
Illinois, was a dismissal on jurisdictional grounds and not
for failure to state a claim upon which relief can be
granted. Dkt. 5, p. 5. Jurisdictional dismissals are not
counted as strikes under § 1915(g), Haury v.
Lemmon, 656 F.3d 521, 523 (7th Cir. 2011) (per curiam),
so the Court does not consider No. 1:14-cv-2797 in the §
Sebolt next challenges whether the third listed case,
Pindelski, should be a strike. On August 6, 2019,
Pindelski was reopened on a motion pursuant to
Federal Rule of Civil Procedure 60(b) and is now proceeding.
The judgment was vacated and the action no longer qualifies
as a § 1915(g) action. He filed the instant action on
September 5, 2019, one month after Pindelski was
reopened. Therefore, at the time he filed this action, Mr.
Sebolt had only two civil cases that he filed as a prisoner
and had been dismissed for failure to state a claim upon
which relief can be granted and met the § 1915(g)
criteria for a strike.
§ 1915(g) no longer bars Mr. Sebolt from proceeding
in forma pauperis, the motion for leave to proceed
in forma pauperis, dkt. , is
granted. Mr. Sebolt is assessed an initial
partial filing fee of twenty-seven dollars and eighty-three
cents ($27.83). See 28 U.S.C. § 1915(b)(1)(A),