The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
MEMORANDUM OPINION & ORDER
On May 19, 2003, I revoked Plaintiff pro se Injah Tafari's ("Plaintiff" or "Tafari") in forma pauperis ("IFP") status because he had filed three lawsuits that had been dismissed as frivolous, malicious, or for failure to state a claim (i.e. three "strikes"). See 28 USC § 1915(g) (2007). On January 22, 2007, Tafari petitioned this Court to reinstate his IFP status.
Because Tafari no longer possesses three "strikes" within the meaning of 28 USC § 1915(g), following recent Second Circuit interpretation of that statute, Tafari's IFP status is reinstated.*fn1
28 U.S.C. § 1915(g) states, in relevant part, that IFP status for a prisoner is revoked 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." See 28 U.S.C. § 1915(g).
In my May 19, 2003 Memorandum Order revoking Tafari's IFP status for this case, I cited three dismissed lawsuits by Tafari that meet the "three strikes" requirement of § 1915(g). Those "strikes" are:
1) Tafari v. Hues, No. 00 Civ. 7282, slip op. at 1 (S.D.N.Y. Jan 29, 2002), dismissed pursuant to Fed. R. Civ. P. 12(b)(6);
2) Tafari v. Aidala, No. 00 Civ. 405, slip op (S.D.N.Y. Sept. 28, 2001), also dismissed pursuant to Fed. R. Civ. P. 12(b)(6); and
3) The Second Circuit's subsequent dismissal of Tafari v. Aidala for frivolousness. Tafari v. Aidala, No. 01-0279 (2d Cir. 2001).
See Tafari v. McGinnis, 2003 U.S. Dist. LEXIS 8427, at *1-3 (S.D.N.Y. May 19, 2003).*fn2
Recently, the district court concluded it would be both unfair and illegal to count Tafari v. Hues as a "strike" because the Hues dismissal was based on a "remediable failure to exhaust administrative remedies," rather than an ultimate determination on the merits. The Second Circuit subsequently affirmed. See Hues, 473 F.3d 440, 441, 442-43, citing Snider v. Melindez, 199 F. 3d 108 (2d Cir. 1999). Additionally, the Hues Court disqualified a fourth dismissal of a separate lawsuit by Tafari as a "strike," as that dismissal was based on the prematurity of an interlocutory appeal, rather than an ultimate determination on the merits. See Hues at 443, citing Tafari v. Moscicki, No. 01-0035 (2d Cir. Aug. 8, 2001) ("Moscicki").
A case dismissed for failure to state a claim pursuant to FRCP 12(b)(6) does not count as a "strike" to revoke a prisoner's IFP status if it is a dismissal without prejudice for a remediable failure to comply with procedural prerequisites. See Hues, 473 F.3d 440, 443, citing 28 U.S.C. § 1915(g).
Accordingly, as noted above, the first "strike" I cited in my May 19, 2003 Order, Tafari v. Hues, No. 00 Civ. 7282, was subsequently disqualified as a "strike" by the district court, with that disqualification subsequently affirmed by the Hues Court. See Hues, 473 F.3d at 442. In fact, § 1915(g) does not encompass dismissals for failure to exhaust administrative remedies, because § 1915(g) was "intended to apply to non-meritorious suits dismissed with prejudice. because of a determination that [they] ultimately cannot succeed. not suits dismissed without prejudice for failure to comply with a procedural prerequisite." Id. (internal ...