United States District Court, D. Connecticut
JAMES A. HARNAGE, Plaintiff,
C.C. GAUDETTE, 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. 6. The plaintiff seeks
reconsideration of that decision. After review, the court
concludes that the requested relief should be denied.
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 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
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
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. §
1915(g), and plaintiff's second argument fails.