The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
GRANTING THE DEFENDANT'S MOTION TO VACATE THE AUGUST 20, 2009 ORDER GRANTING THE PLAINTIFF LEAVE TO PROCEED IN FORMA PAUPERIS
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.*fn1 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.
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 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 IFPstatus. 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 ...