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Robert v. Towle

United States District Court, D. New Hampshire

September 16, 2014

Robert
v.
Towle
v.
Michelle Hartshorn.

REPORT AND RECOMMENDATION

ANDREA K. JOHNSTONE, Magistrate Judge.

Robert Towle has filed this action against Defendant Michelle Hartshorn, pursuant to 42 U.S.C. § 1983, alleging that Hartshorn has violated his rights under the First Amendment. See Doc. No. 1 (Complaint). Towle is proceeding in forma pauperis in this matter. See Doc. No. 8 (Order granting Towle in forma pauperis status).

DISCUSSION

I. 28 U.S.C. § 1915(g)

The granting of in forma pauperis status to a prisoner is governed by 28 U.S.C. §§ 1915 and 1915A. Section 1915(g) states that:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner 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, unless the prisoner is under imminent danger of serious physical injury.

"Determining whether Plaintiff's actions count as strikes under § 1915(g) requires the Court to conduct a careful examination of the order dismissing an action, and other relevant information, ' to determine if, in fact, the action was dismissed because it was frivolous, malicious or failed to state a claim.'" Palmer v. Berkson, No. 1:11-CV-01882-LJO, 2013 WL 6909440, *1 (E.D. Cal. Dec. 31, 2013) (citation omitted), report and recommendation adopted, 2014 WL 223482 (E.D. Cal. Jan. 21, 2014). District courts may apply the three strikes rule sua sponte, as "the three strikes rule is not an affirmative defense that must be raised in the pleadings." Harris v. City of New York , 607 F.3d 18, 23 (2d Cir. 2010).

II. Towle's Litigation History

Towle has filed nine lawsuits in this court during his incarceration. Since 2012, this Court has dismissed the following four of those cases on grounds that qualify each of them as a "strike" for purposes of § 1915(g):

• Towle v Hornick, No. 11-cv-203-PB, 2012 WL 27957 (D.N.H. Jan. 5, 2012) (adopting report and recommendation and dismissing case), aff'd, No. 12-1100 (1st Cir. June 15, 2012) (hereinafter "Hornick Case").

• Towle v. Eldridge, No. 11-cv-293-SM, 2012 WL 40458 (D.N.H. Jan. 6, 2012) (adopting report and recommendation and dismissing case) (hereinafter "Eldridge Case").

• Towle v. Vaughan, No. 12-cv-299-PB, 2013 WL 149471 (D.N.H. Jan. 14, 2013) (adopting report and recommendation and dismissing case) (hereinafter "Vaughan Case").

• Towle v. Bornstein, No. 13-cv-106-PB (D.N.H. Aug. 20, 2013) (adopting report and recommendation) ...


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