United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III UNITED STATES DISTRICT JUDGE
pro se prisoner action is before the Court on Plaintiff
Michael Lee Gordon's motion to reopen the case  and
motion to object to the Report and Recommendation .
Defendants Jose Santana and Christopher Zepher responded in
opposition . Plaintiff declined to file a reply, and the
time to do so has passed. The Court, having considered the
submissions of the parties along with the pertinent
authorities, finds that Plaintiff's motion to reopen the
case  should be granted to the extent that the arguments
raised in his motion to object  have been considered and
rejected. The Order  adopting the Report and
Facts and Procedural History
a federal inmate, filed this § 1983 action in August
2015, against multiple defendants, challenging the conditions
of his confinement during his temporary housing at Central
Mississippi Correctional Facility (“CMCF”) in
Pearl, Mississippi. Compl. . Magistrate Judge F. Keith
Ball granted Gordon's motion to proceed in forma
pauperis (“ifp”). Order . Defendants Jose
Santana and Christopher Zepher thereafter moved to revoke
Gordon's ifp status pursuant 28 U.S.C. § 1915(g),
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.
did not respond to the motion, and Judge Ball recommended
revoking ifp status. R&R . In addition to addressing
Gordon's prior filings, Judge Ball also rejected any
suggestion that Gordon was in imminent danger of serious
physical injury. Id.
did not file an Objection, and the Court adopted the
unopposed Report and Recommendation, revoking ifp status and
giving Gordon thirty days to pay the filing fee. Order .
Rather than pay the fee, Gordon asks the Court to reopen the
case  and allow him to object to the Report and
Recommendation . Defendants Santana and Zepher oppose
these requests .
filings present two issues: (1) has he presented grounds for
relief pursuant to Federal Rule of Civil Procedure 60(b) and
(2) has he established “imminent danger” pursuant
to § 1915(g).
Rule 60(b), the Court has discretion to relieve a party from
an order under six circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct ...