Nathan Jacobs v. Shelly Carr | Court Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-6372

NATHAN E. JACOBS,

Plaintiff - Appellant,

MRS. SHELLY CARR, Case Manager,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, District Judge. (2:16-cv-00001-JPB-MJA)

Submitted: January 12, 2017 Decided: February 7, 2017

Before GREGORY, Chief Judge, and MOTZ and AGEE, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Nathan E. Jacobs, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Nathan E. Jacobs appeals the district court’s order

dismissing his Bivens 1 complaint. Because the district court

incorrectly determined that Jacobs has three qualifying strikes

under the Prison Litigation Reform Act (PLRA), 28 U.S.C.

§ 1915(g) (2012), we vacate the order of dismissal and remand.

In concluding that Jacobs had three strikes under the PLRA

at the time he filed the subject complaint, the district court

relied on Jacobs v. U.S.A. Supreme Court Clerk, Civ. Action No.

10-1332, 2010 WL 3123169 (D.D.C. Aug. 9, 2010) (unpublished);

Jacobs v. Supreme Court of the United States, No. 10-5271, 2011

WL 2199975 (D.C. Cir. May 17, 2011) (unpublished) (“Supreme

Court”); and Jacobs v. Holder, No. 4:10-cv-1544, 2010 WL 4449357

(N.D. Ohio Nov. 1, 2010) (unpublished). We conclude that the

district court erred in finding that Supreme Court properly

qualifies as a strike.

In Supreme Court, the U.S. Court of Appeals for the

District of Columbia Circuit denied relief, stating that

“[b]ecause the appropriate disposition is so clear, summary

action is warranted.” 2011 WL 2199975, at . However, the

court did not reference § 1915 or explicitly state that Jacobs’

1Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

2 appeal was frivolous, malicious, or failed to state a claim for

relief. In light of our decision in Blakely v. Wards, 738 F.3d

607 (4th Cir. 2013) (en banc), in which we emphasized the

importance of the express language used by the adjudicating

court, id. at 613-15, 617, we conclude that the language in

Supreme Court does not evidence a PLRA strike. 2

Accordingly, we vacate the order of dismissal and remand

for further proceedings. We deny Jacobs’ pending motion. We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

VACATED AND REMANDED

2A PACER search did not reveal any other action that could properly qualify as a strike against Jacobs.

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