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Sebolt v. Tyndall

United States District Court, S.D. Indiana, Terre Haute Division

January 15, 2020

PHILIP M. SEBOLT, Plaintiff,
v.
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 CAUSE

          James Patrick Hanlon United States District Judge

         On 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.

         A. In Forma Pauperis Status

         When he 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, 2018).

         The 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.

         Mr. 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.

         The four strikes listed in the Court's order in case number 2:18-cv-00088-WTL-DLP are:

(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 claim)

         In the 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 § 1915(g) analysis.

         Mr. 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.

         Because § 1915(g) no longer bars Mr. Sebolt from proceeding in forma pauperis, the motion for leave to proceed in forma pauperis, dkt. [5], 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. ยง 1915(b)(1)(A), ...


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