McLaughlin v. Central Peninsula General Hospital et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MICHAEL L. McLAUGHLIN,
Plaintiff,
vs.
CENTRAL PENINSULA GENERAL
HOSPITAL, et al.,
Defendants.
Case No. 3:19-cv-00154-TMB-MMS
ORDER RE: AMENDED JUDGMENT
On May 30, 2019, self-represented prisoner Michael L. McLaughlin filed a
“Complaint for Violation of Civil Rights and the False Claims Act” along with a Civil
Cover Sheet, a Prisoner’s Application to Waive Prepayment of the Filing Fee, and
a Declaration of a Timely Inmate Filing.1 On September 23, 2019, Mr. McLaughlin
filed a “Motion Seeking Acceptance of an Amended Complaint to Facilitate
Permissive Joinder of Plaintiff United States” (“Motion to Amend”)2 and a Motion
to Seal along with a 51-page “Plaintiff’s First Amended Complaint for Violation of
Civil 	Rights 	and 	the 	False 	Claims 	Act” 	(“First 	Amended 	Complaint”).3 	On
November 25, 2019, the Court issued a Screening Order dismissing the case
1 Dockets 1–4.
2 Docket 6.
3 Docket 7 & 7-1.
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3:19-cv-00154-TMB-MMS, McLaughlin v. Cent. Peninsula Gen. Hosp., et al.
Order Re: Amended Judgment
Page 2 of 3
without prejudice and entered a final judgment.4 	The Screening Order and
Judgment indicate that Mr. McLaughlin received a strike, because as a prisoner
seeking leave to proceed in forma pauperis, he failed to state a claim as required
by 28 U.S.C. § 1915.5
Federal Rule of Civil Procedure 60(a) permits a Court to “correct a clerical
mistake or a mistake arising from oversight or omission whenever one is found in
a judgment, order or other part of the record.” The Court may take such action “on
motion or on its own, with or without notice.”6
28 U.S.C § 1915(g), also known as the “Three Strikes Provision” of the
Prison Litigation Reform Act, requires that federal courts restrict the filings of in
forma pauperis prisoners after three actions are dismissed for being frivolous,
malicious, or failing to state a claim.7 A court “should look to the substance of the
dismissed lawsuit in order to determine whether it can be counted as a ‘strike.’”8
4 Dockets 8 (Screening Order) & 9 (Judgment).
5 Id.
6 Fed. R. Civ. P. 60(a).
7 28 U.S.C. § 1915(g) provides that a prisoner who files more than three actions or
appeals in any federal court in the United States, that are dismissed as frivolous or
malicious or for failure to state a claim upon which relief may be granted, will be prohibited
from bringing any other actions without prepayment of fees unless the prisoner can
demonstrate 	that 	he 	or 	she 	is 	in 	“imminent 	danger 	of 	serious 	physical 	injury.”
8 El-Shaddai v. Zamora, 833 F.3d 1036, 1047 (9th Cir. 2016).
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3:19-cv-00154-TMB-MMS, McLaughlin v. Cent. Peninsula Gen. Hosp., et al.
Order Re: Amended Judgment
Page 3 of 3
In this action, Mr. McLaughlin’s case was dismissed for failure to state a claim.9
However, 	the 	dismissal 	of 	this 	action 	was 	without 	prejudice, 	because 	Mr.
McLaughlin’s claims were procedurally barred at this time.10 	The Court has not
made a final determination on the merits of Mr. McLaughlin’s claims.
Accordingly, the Court removes the strike against Mr. McLaughlin. 	The
Clerk of Court is directed to amend Mr. McLaughlin’s judgment and remove the
strike under 28 U.S.C. § 1915(g). 	Furthermore, the Clerk of Court is directed to
send a copy of this Order with Mr. McLaughlin’s amended judgment.
DATED at Anchorage, Alaska, this 31st day of December, 2019.
/s/
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
9 Docket 8.
10 Id.
Timothy M. Burgess
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