ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on defendants' motion to revoke plaintiff's in forma pauperis ("IFP") status and to dismiss this action because plaintiff has had three or more actions dismissed for failure to state a claim. Plaintiff has filed an opposition to the motion, and defendants have filed a reply.
Plaintiff is proceeding on his second amended complaint against defendants Brautigam, Vansant, Smith, Callison, Tovar, Felker, Davey, McDonald, Harper, Switzer and Dodge. Therein, plaintiff alleges that: (1) defendant Brautigam violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and plaintiff's rights under the First Amendment; (2) defendants Vansant, Smith, Callison, and Tovar used excessive force against plaintiff in violation of the Eighth Amendment; (3) defendants Felker, Davey, McDonald, and Harper violated plaintiff's Eighth Amendment right to receive adequate medical care; and (4) defendants Switzer and Dodge failed to adequately protect plaintiff in violation of the Eighth Amendment. (Sec. Am. Compl. (Doc. No. 13) at 2-16.) In terms of relief, plaintiff seeks monetary damages and an order directed at prison officials requiring that the Special Needs Yards at his institution of confinement be segregated. (Id. at 3, 8, 15.)
DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IFP STATUS
Defense counsel argues that the court should revoke plaintiff's IFP status and dismiss this action because on at least three occasions prior to the filing of this action, plaintiff incurred a strike under 28 U.S.C. § 1915(g). Counsel lists four actions, three in the Northern District of Indiana and one in the Eastern District of California, that plaintiff brought prior to his filing of this action.*fn1 According to defense counsel, in each of these earlier-filed civil actions, the court dismissed plaintiff's complaint for failure to state a claim upon which relief could be granted. (Defs.' Mot. to Dismiss (Doc. No. 23) at 3-5.)
II. Plaintiff's Opposition
In opposition to defendants' motion, plaintiff argues that this court should allow him to continue to proceed IFP in this action because: (1) three of the earlier-filed civil actions relied upon by defendants were brought by plaintiff against family members or other inmates and therefore those dismissals cannot count as strikes under 28 U.S.C. § 1915(g); (2) plaintiff had been granted IFP status in the earlier-filed civil actions and a dismissal of a case can only be counted as a strike under 28 U.S.C. § 1915(g) when a plaintiff is not allowed to proceed IFP; (3) three of his earlier-filed civil actions relied upon by defendants are still pending; (4) the filing fee must be paid at the outset of an action and here plaintiff has already be granted IFP status; and (5) three of the earlier-filed civil actions were only dismissed because they were not brought against government defendants and therefore those dismissals cannot count as strikes. (Pl.'s Opp'n. to Defs.' Mot. to Dismiss (Doc. No. 26) at 1-3.)
In reply, defense counsel argues that plaintiff's arguments are meritless and fail to refute defendants' evidence that plaintiff acquired at least three strikes prior to initiating this action. (Defs.' Reply (Doc. No. 27) at 1-3.)
The federal in forma pauperis statute includes a limitation on the number of actions in which a prisoner can proceed in forma pauperis.
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under [§ 1915] 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.
28 U.S.C. § 1915(g). "[T]he plain language of § 1915(g) requires that the court look at cases dismissed prior to the enactment of the [Prison Litigation Reform Act] to determine when a prisoner has used his three ...