United States District Court, D. Connecticut
JAMES A. HARNAGE, Plaintiff,
ANTONIO SANTIAGO, et al., Defendants.
RULING AND ORDER
W. Thompson United States District Judge
plaintiff, James A. Harnage, who is currently incarcerated at
Corrigan-Radgowski Correctional Center in Uncasville,
Connecticut, initiated this action by filing a complaint pro
se, pursuant to 42 U.S.C. § 1983. On December 12, 2016,
the court denied Plaintiff's motion to proceed in forma
pauperis under the three-strikes provision of 28 U.S.C.
§ 1915(g) because he previously had three cases
dismissed as frivolous or for failure to state a claim upon
which relief may be granted. See Ruling and Order, ECF No.
The plaintiff seeks reconsideration of that decision. After
review, the court concludes that the requested relief should
will be granted only if the moving party can identify
controlling decisions or data that the court overlooked and
that would reasonably be expected to alter the court's
decision. See Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). A motion for reconsideration may not
be used to relitigate an issue the court already has decided.
See Shrader, 70 F.3d at 257; SPGGC, Inc. v.
Blumenthal, 408 F.Supp.2d 87, 91 (D. Conn. 2006),
aff'd in part and vacated in part on other
grounds, 505 F.3d 183 (2d Cir. 2007).
plaintiff asserts two arguments in support of his motion.
First, he argues that two of the dismissals cited in the
prior order should not count as strikes because appeals of
the dismissals are pending. Second, he contends that cases
dismissed as time-barred are not frivolous and should not
count as strikes.
plaintiff states that he has appealed the dismissals in
Harnage v. Coletti, 3:16-cv-1537(AWT), and
Harnage v. Murphy, 3:16-cv-1651 (AWT). He cites cases
from other circuits to support his position that a dismissal
must be affirmed on appeal before it can constitute a strike
under section 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir.
1996) (opining that a dismissal should not be counted as a
strike until the prisoner has exhausted or waived an appeal);
see also Thompson v. Drug Enforcement Admin., 492
F.3d 428, 432 (D.C. Cir. 2007); Campbell v. Davenport
Police Dep't, 471 F.3d 952, 953 (8th Cir.
2006); Jennings v. Natrona County Detention Center
Medical Facility, 175 F.3d 775, 780 (10th
Cir. 1999). None of the cited cases are binding on this court
and all of the cases were decided before the Supreme Court
addressed the issue.
2015, the Supreme Court held that “[a] prior dismissal
on a statutorily enumerated ground counts as a strike even if
the dismissal is the subject of an appeal.” Coleman
v. Tollefson, __U.S. __, 135 S.Ct. 1759, 1763 (2015).
The Court noted that this interpretation of the term
“dismissal” is consistent with the manner in
which district court judgments are treated. Without a
specific stay, judgments are effective as soon as they are
entered, notwithstanding any appeal that may have been filed.
Id. at 1764. The Supreme Court noted that if a
dismissal that had been counted as a strike were later
overturned, the prisoner could move to reopen any case for
which in forma pauperis status was denied based on
that strike and reapply for in forma pauperis status. See
Id. Thus, in light of the Supreme Court's
decision, the Plaintiff's first argument fails.
Dismissals as Time-Barred
plaintiff argues that a dismissal based on the statute of
limitations is not frivolous as that term has been defined by
the Supreme Court. See Neitzke v. Williams, 490 U.S.
319, 325 (1989) (claim is frivolous if it lacks an arguable
basis in fact or law). The court agrees that a dismissal
based on statute of limitations grounds is not frivolous.
However, the plaintiff fails to acknowledge that
frivolousness is not the only basis for dismissal under 28
U.S.C. §§ 1915 and 1915A. The court must dismiss a
case that is frivolous or malicious or that fails to state a
claim upon which relief may be granted. See 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b). Thus, the fact that
the claims are not frivolous does not render the court's
plaintiff also argues that a dismissal on statute of
limitations grounds should not count as a strike because it
is based on an affirmative defense. Again, he cites
nonbinding cases from other circuits to support his position.
See Butler v. Department of Justice, 492 F.3d 440,
443-45 (D.C. Cir. 2007)(considering dismissal for failure to
prosecute); Thompson, 492 F.3d at 437 (dismissal for
lack of jurisdiction is not frivolous and is different from
dismissal for failure to state a claim upon which relief may
be granted); Myles v. United States, 416 F.3d 551,
553 (7th Cir. 2005) (dismissal as time-barred
should not count as a strike); Daniels v.
Woodford, No. CV 07-6975PA(JC), 2008 WL 2079010, at *6,
8 (C.D. Cal. May 13, 2008)(dismissals for failure to
prosecute or after summary judgment do not count as strikes).
a ruling on a motion to proceed in forma pauperis is
not the proper vehicle to challenge the correctness of a
prior dismissal. If the plaintiff believes that a prior
dismissal was improper, his recourse is an appeal of the
dismissal. One of the cases cited by the plaintiff supports
this position. See Thompson, 492 F.3d at 438-39
(“[E]ven though a court may believe that a previous
court erred by dismissing … under Rule 12(b)(6) or by
failing to do so, all that matters for the purpose of
counting strikes is what the earlier court actually did, not
what it ought to have done.”).
even though the challenge to the prior dismissal is not
properly asserted in this motion, the court will address the
argument. The Second Circuit has not specifically addressed
this issue. However, the Second Circuit has held that
“the apparent purposes of Section 1997e(c)(3) and of
the three strikes provision of Section 1915(g) strongly imply
that the dismissal contemplated in these provisions is one
that finally terminates the action because of a determination
that it ultimately cannot succeed.” Snider v.
Melindez, 199 F.3d 108, 111 (2d Cir. 1999).
district courts within the Second Circuit have held that the
court may properly dismiss a case sua sponte for failure to
state a claim upon which relief may be granted where an
affirmative defense, like the statute of limitations, is
apparent on the face of the complaint. See Jones v.
Moorjani, No. 13 Civ. 2247(PAC)(JLC), 2013 WL 6569703,
at *8 n.16 (S.D.N.Y. Dec. 13, 2013); see also Nealy v.
Kamas, No.12-CV-6201-CJS, 2013 WL 140111, at *2
(W.D.N.Y. Jan. 10, 2013) (dismissal on statute of limitations
grounds is dismissal for failure to state a claim upon which
relief may be granted and counts as a strike). This court
agrees with the reasoning in those opinions.
the dismissals in all three cases on statute of limitations
grounds constituted strikes for purposes of 28 U.S.C. §