UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PRESSLEY B. ALSTON, : : Plaintiff, : Civil Action No.: 09

- 1397 (RMU) : v. : Re Document No.: 25 : FEDERAL BUREAU OF : INVESTIGATION, : : Defendant. : MEMORANDUM OPINION
G RANTING THE D EFENDANT ’ S M OTION TO V ACATE THE A UGUST 20, 2009 O RDER G RANTING THE P LAINTIFF L EAVE TO P ROCEED I N F ORMA P AUPERIS I. INTRODUCTION
This matter comes before the court on the defendant’s motion to vacat e 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 o n t hree 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 t o 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 of2 Information Act (“FOIA”) , 5 U.S.C. § 552

. Compl. at 1. The court granted him leav e to proceed
IFP on August 20, 2009. 1 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 t he three strikes rule of the Prison Litigation Reform Act (“PLRA”), 28 U.S .C. § 1915(g). Def.’s Mot. at 1. To date, t he plaintiff has failed to respond to the defendant’s motion

. With this motion ripe for adjudication, the court turns to the

a pplicable legal standard and the government’s arguments.

III. ANALYSIS 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))

. T h is pr ovision, commonly re ferred to as the three strikes rule, requires t hat 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 , brough t 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 up on 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, ever y claim in the dismissed action must have been

1 Although the defendant asks that the court vacate its “Order . . . of January 13, 2010,” Def.’s Mot. at 1, it is clear that the subject of the defendant’s motion is the court’s August 20, 2009 order.3 dismissed as frivolous, malicious or for failure to state a claim. I d.
The defendant carries the initial burden of producing evidence challenging a prisoner’s
IFP status. Id. at 43 5

- 3 6. The court may , howe ver, 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 4 36.
A prisoner may also show that he is exempt from the thr ee 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 p risoner 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 seek s to dismiss , Mitchell , 587 F.3d at
420. In evaluating whether the immi nent 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 Plain tiff H as Three S trikes
1. Strike One
I n Alston v. Jacksonville Sheriff’s Office , Civ

. No. 3:02

- 363 ( M.D. Fla. April 29, 2002) (Order) , the Middle District of Florida dismissed the plaintiff’s 28 U.S.C. § 1983 (“§ 1983”)
action because the plaintiff fail ed to state a clai m against any of the named defendants. See Def.’s Notice, Ex. 1 (“ Alston I ”) at 4 (noting that “the plaintiff has alleged no causal connection
between any of the named Defendants and any constitutional deprivation ” and indicating that
such causal connecti on is a n “essential element” of a § 1983 claim )

. Although t he Alston I court
also relie d on the Eleventh Amendment ’s immunity for state actors to dismiss the claims against4 certain defendants , it is clear from the di smissal order that immunity constituted a s alternative grounds for dismissal. Id. Because the order indicates that the plaintiff’s entire action was dismissed for failure to state a claim, this dismissal constitutes the plaintiff’s first strike. Gay v.
Suter , 2008 WL 2628435, at *1 (D.D.C. J une 30, 2008) (counting as a strike a dismissal based
on frivolousne ss and, in the alternative, the defendant ’s immunity from suit)

. 2. Strike Two
In Alston v. U.S. Dist. Court , M.D. Fla, Jacksonville Div., et al. , Civ

. No. 3:02

- 364 (M.D.
Fla. April 29, 2002) (Order) , the court again dismissed the plaintiff’s action because it was clear from his complaint that he could not show an essential element of a § 1983 action. See Def.’s Notice, Ex. 2 (“ Alston II ”) at 3 (noting that it was “clear that both named Defendants do not and were not acting under color of state law ,” which the court notes is an “essential element” of a §
1983 claim ) . Because the Alston II court dismissed the action due to the plaintiff’s failure to
state a claim , the dismissal counts as the plaintiff’s second strike

. 28 U.S.C. § 1915(g).
3. Strike Three
In Alston v. Glover , Civ

. No. 03

- 1851 (D.D.C. Oct

. 23, 2003) (Mem

. Order) (“ Alston
III ”) , 2

2 Although t his case was not referenced in the defendant’s motion , t he court is permitted to rely on any evidence that is “readily availa ble.” Thompson , 492 F.3d at 436 (noting that either the defendant or the court can produce evidence challenging the plaintiff’s IFP status). the plaintiff requested that “ the court review his criminal and post

- conviction proceedings

c onducted in the Middle District of Florida ” and award him damages. Alston III at 1

. The Alston
III court noted that the claim for damages was “not cognizable without a showing or at least an allegation . . . that his conviction ha[d] been invalidated by reversal on direct appeal, expungement by executive order, declaration of invalidity by a state tribunal authorized to make5 such determination, or a federal court’s issu ance of a writ of habeus corpus

. ” Alston III at 1

- 2 ( noting that H eck v. Humphrey requ ires that the plaintiff must prove that his conviction has already been overturned before the plaintiff could bring his civil suit ( citing Heck v. Humphrey , 512 U.S. 477, 486

- 87 (1994)) )

. “A dismissal under Heck is considered a basis for assessing a “str ike” for purposes of 28 U.S.C. § 1915(g).” Jones v. Lieber , 2010 WL 1958127, at *1, n.1 (D.D.C. May 13, 2010) (citing
Reese v. D.C. Metro. Police , 2001 WL 410449, at *1 (D.C. Cir. Mar. 15, 2001)). Indeed, t he
Circuit itself has dismissed an appeal as fri vo lous and counted such the dismi ssal as a strike where the appe l lant did not conform to the requirements mandated by Heck

. Reese , 2001 WL 410449, at *1 ; see also Hazel v. Reno , 20 F. Supp. 2d 21, 24 (D.D.C. 1998) (concluding that a complaint “barred by H eck ” i s appropriately dismissed as frivolous)

. Because the Alston III court relied on § 1915A(b)(1) 3 and Heck in dismissing the plaintiff’s claim , the court concludes
that Alston III counts as the plaintiff’s third strike. 4

3 The Alston III court, in a typographical error, cites 28 U.S.C. § 1915A(b)(2) as a ground for dismissal. See Alston v. Glover , Civil Action No. 03

- 1851 (D.D.C. October 23, 2003) (“ Alston III ”). Section 1915A(b)(2) allows for dismissal if the plaintiff seeks a monetary award from a defendant who is clearly immune from relief. 28 U.S.C. § 1915A(b)(2). Alston II I , however, contained no discussion of immunity. See generally Alston III . Instead, it is clear that the court intended to dismiss pursuant to 28 U.S.C. § 1915A(b)( 1 ), which concerns dismissal for failure to state a claim. See Alston III at 1 (noting th at the plaintiff’s claim was “not cognizable” without a showing as required by Heck ). Accordingly, the plaintiff has three strikes under § 1915(g) , and because the plaintiff does not allege that he is in any imminent danger

4 It appears that the plaintiff is an abusive filer. A search on the Public Access to Court Electronic Records (“PACER”) service reveals that the plaintiff has filed fifty

- two cases in the past ten years. Butler v. Dep’t of Justice , 492 F.3d 440, 444 (D.C. Cir. 2007) (noting that prisoners who repeatedly file as some sort of “pas t time” may be stripped of their IFP privileges). The court also takes note that the Midd le District of Florida has repeatedly held that the plaintiff has exhausted his strikes under the PLR A

. See e.g. , Alston v. Florida , Civ

. No. 3:05

- 11 (M.D. Fla. Jan. 7, 2005) (Order) ; Alston v. Federal Bureau of Prisons , Civ

. Action No. 3:04

- 197 (M.D. Fla

. May 24, 2004) (Order) ; Alston v. Glover , No. 3:02

- cv
- 399 (M.D. Fla. May 1, 2002) (Order)

.6 related to his FOIA action, the court strips him of his IFP status

.

IV . CONCLUSION For the foregoing reasons, the court grants the defendant’s motion to vacate the order granting the plaintiff leave to proceed IFP . W ithin 30 days of this Order, plaintiff shall pay to the Clerk of Court the filing fee of $350 .00 to maintain this action or suffer dismissal of the case.
An Order consistent with th is Memorandum Opinion is separately and contemporaneously issued this 2nd day of November, 2010.

RICARDO M. URBINA United States District Judge