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Prison Litigation Reform Act: "Three Strikes" Rule
Monthly
Law Journal Article: The "Three Strikes"
Rule In Prisoner Civil Rights Litigation, Part 1, 2016 (6) AELE Mo. L.
J. 301.
Monthly Law Journal Article: The "Three Strikes"
Rule In Prisoner Civil Rights Litigation, Part 2, 2016 (7) AELE Mo. L.
J. 301.
An indigent South Carolina prisoner filed three federal civil rights lawsuits against various employees of the state Department of Corrections and a city. In an appeal of the dismissal of one of these lawsuits, the U.S. Court of Appeals for the Fourth Circuit, interpreting the “three strikes” rule of the Prison Litigation Reform Act (PLRA), joined the Ninth and Tenth Circuits in ruling that a trial court’s dismissal of a prisoner’s complaint does not, in an appeal of that dismissal, constitute a “prior” dismissal. It therefore was not a “strike” for purposes of the “three strikes” rule, and the plaintiff’s motion to proceed as a pauper in the appeal was granted. Taylor v. Grubbs, #17-6374, 930 F.3d 611 (4th Cir. 2019).
The dismissal of one of a prisoner’s prior lawsuits for lack of standing was a dismissal for lack of subject matter jurisdiction, which was not a ground enumerated in section 1915(g) of the Prison Litigation Reform Act, barring a prisoner from proceeding as a pauper after “three strikes.” The “three strikes” all must be dismissals based on frivolous or abusive litigation or failure to state a claim. Without the one “strike” at issue, the trial court erroneously dismissed the prisoner’s federal civil rights lawsuit for failure to pay the required filing fee as he was entitled to proceed as a pauper. Hoffmann v. Pulido, #18-15661, 2019 U.S. App. Lexis 20177, 2019 WL 2910812 (9th Cir.).
Prior precedent in the D.C. Circuit held that under the “three strikes” rule of the Prison Litigation Reform Act (PLRA), a trial court’s decision to decline to exercise supplemental jurisdiction over state law claims does not count as a strike against a prisoner seeking to proceed as a pauper in later litigation. A federal appeals panel, based on that ruling, has now held that it was not a strike under the PLRA when a trial court in effect, though not in its exact terms, declined to hear state law claims in situations where a federal statute, 28 U.S.C. 1367, would authorize it to resolve the issue. Accordingly, the appeals court granted the plaintiff's petition to proceed as a pauper on appeal and remanded with instructions for the trial court to do the same, as the plaintiff did not have “three strikes.” Ladeairous v. Sessions, #15-5324, 884 F.3d 1172 (D.C. Cir. 2018).
A plaintiff prisoner was properly denied permission to proceed with his federal civil rights lawsuit as a pauper or to file future lawsuits as a pauper unless he was under imminent threat of serious physical injury when the record showed that he had previously had more than three “strikes,” lawsuits dismissed as frivolous, malicious, failing to state a claim upon which relief may be granted, or which sought monetary relief from a defendant entitled to immunity from such relief. The lawsuit was dismissed without prejudice to his filing a new action with payment of the filing fee. Akassy v. Hardy, #17-2737, 2018 U.S. App. Lexis 8506 (2nd Cir.).
A case in which a district court declines to exercise supplemental jurisdiction over a prisoner's state-law claims does not count as a strike under the Prison Litigation Reform Act (PLRA), 28 U.S.C. 1915(g). Because of this, a federal appeals court found that a trial court improperly barred the plaintiff from proceeding as a pauper, as he did not have three strikes. A trial court must independently evaluate whether the prior dismissals were dismissed on one of the enumerated grounds and therefore count as strike, rather than simply defer to an earlier district court's contemporaneous statement that a dismissal counts as a strike. Fourstar v. Garden City Group, Inc., #15-5049, 2017 U.S. App. Lexis 23950, 2017 WL 5707547 (D.C. Cir.).
A federal appeals court overturned the trial court’s dismissal of a prisoner’s lawsuit alleging deliberate indifference to his serious medical needs under the “three strikes” rule of the Prison Litigation Reform Act. Because the plaintiff alleged a total lack of hepatitis treatment and the resulting onset of cirrhosis, his complaint fell within the imminent-danger exception to the three strikes provision. Mitchell v. Warden Nobles, #16-12043, 873 F.3d 869 (11th Cir. 2017).
A prisoner had been in solitary confinement for eight years, and was facing continued solitary confinement for the next ten years. He was diagnosed with intermittent explosive disorder, schizoaffective disorder, and other conditions that made him dangerous to others. He claimed that the isolation, heat, and restricted airflow in solitary confinement aggravated his psychological problems and his asthma. He sought to proceed in his lawsuit as a pauper, but this was denied after he conceded that at least three of his prior suits or appeals had been dismissed as frivolous, malicious, or failing to state a claim. A federal appeals court vacated the dismissal of his suit, citing “imminent harm” exception to the three strikes rule. The plaintiff argued that the conditions of his confinement made him attempt to harm himself, that he had twice tried to commit suicide, and had engaged in self-mutilation. His history, coupled with the prison’s diagnosis of his condition, made his allegations plausible. Sanders v. Melvin, #17-1938, 873 F.3d 957 (7th Cir.).
An indigent prisoner who was a prolific pro se litigant filed approximate 40 lawsuits over a brief period of time. In 2014, his lawsuit claiming false arrest, malicious prosecution, and the use of excessive force was dismissed with prejudice as time-barred and this was his first strike under the Prison Litigation Reform Act’s (PLRA) “three strikes” rule limiting a prisoner’s ability to proceed as a pauper if they abuse the judicial system by filing frivolous actions. His next strikes arose from the dismissals, as “frivolous,” of two 2015 civil rights complaints. The Third Circuit upheld the denial of the prisoner’s attempt to proceed as a pauper on the appeal of the dismissal of the third strike. An indigent prisoner appealing a trial court’s imposition of his “third strike” may not proceed as a pauper for that appeal without demonstrating that he is in “imminent danger of serious physical injury.” Parker v. Montgomery County Correctional Facility, #15-3449, 870 F.3d 144 (3rd Cir. 2017).
A prisoner was denied a motion to proceed with his federal civil rights lawsuit after the trial court identified five “strikes” under the Prison Litigation Reform Act (PLRA), 28 U.S.C. 1915(g), and found that he failed to establish that he was under imminent danger of serious physical injury. The statute limits pauper status. In no instance shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding if they have 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. A federal appeals court vacated the ruling. For the purpose of the immediate appeal, the court ruled, the prisoner had only one “strike.” In counting “strikes,” a court must look at the date the notice of appeal is filed, not the date on which the court rules, in assessing whether a particular dismissal counts as a strike, and several of the dismissed cases were filed after the notice of appeal was filed. Further, a dismissal without prejudice for failure to state a claim does not rise to the level of a strike. Millhouse v. Heath, #15-2278, 2017 U.S. App. Lexis 14357 (3rd Cir.).
A prisoner's lawsuit over alleged inadequate
medical care and unsafe prison conditions was not barred by the "three
strikes" rule of the Prison Litigation Reform Act (PLRA). A dismissal
pursuant to Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994), was not a PLRA
strike because his Heck-barred damages claims were intertwined with his habeas
challenge to the underlying sentence. The court held that a dismissal due to
Younger v. Harris, #41, 401 U.S. 37 (1971), abstention, similar to a dismissal
under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction, is not a strike under the PLRA. Finally, his two prior mandamus
petitions directly challenged underlying criminal proceedings, and were more
properly construed as appeals of criminal case habeas claims challenging a criminal
conviction and lie outside the scope of the PLRA. Washington v. LA Cnty.
Sheriff's Dep't., #13-56647, 2016 U.S. App. Lexis 14854 (9th Cir.).
A prisoner who filed at least eleven prior
lawsuits against prison officials was not barred from pursuing the present
lawsuit as a pauper under the three strikes rule of the Prison Litigation
Reform Act's (PLRA), 28 U.S.C. 1915(g) when only one of those prior cases was
dismissed as frivolous, malicious, or failing to state a claim. Dismissal for
failure to exhaust administrative remedies did not constitute a
"strike" under the PLRA. El-Shaddai v. Wang, #13-56104, 2016 U.S.
App. Lexis 14853 (9th Cir.).
A prisoner was
entitled to proceed as a pauper in an appeal from the dismissal of a complaint
that arguably constituted his third "strike" under the "three
strikes rule" of the Prison Litigation Reform Act, since it was not a
strike upon a "prior" occasion. A fourth case that the prisoner lost
did not constitute a "strike" as it was not dismissed as frivolous or
for failure to state a claim. Because the trial judge in that prior case
considered evidence submitted by the defendant, the decision should be
considered a grant of summary judgment, rather than a "strike."
Richey v. Dahne, #12-36045, 807 F.3d 1202 (9th Cir. 2015).
The U.S. Supreme Court ruled that a prisoner who
had accumulated three previously qualifying lawsuit dismissals
("strikes") under the "three strikes rule" of the Prison
Litigation Reform Act, 28 U.S.C. Sec. 1915(a) could not file an additional
lawsuit as a pauper while his appeal of one of those dismissals was still
pending. The rule bars pauper status for prisoner litigants who accumulate
three or more actions or appeals dismissed as frivolous, malicious, or failing
to state a claim upon which relief may be granted. A literal reading of the
statute's phrases "prior occasion" and "was dismissed" was
consistent with the statute's discussion of actions and appeals, it was
supported by the way in which the law ordinarily treated trial court judgments,
and it was supported by the statute's purpose to filter out bad claims and
facilitate consideration of good claims. Coleman v. Tollefson, #13-1333, 135 S.
Ct. 1759, 191 L. Ed. 2d 803, 2015 U.S. Lexis 3201.
A female prisoner claimed that prison officials
put her in danger and caused gang members to threaten her by starting rumors
that she was a convicted sex offender and changing her prison records. She
could proceed with her appeal as a pauper despite having previously suffered
"three strikes" by having lawsuits dismissed as frivolous when she
argued that she faced an imminent danger at the time she filed the notice of
appeal. Further proceedings were ordered on the issue of exhaustion of
available administrative remedies. Williams v. Paramo, #13-56004, 2014 U.S.
App. Lexis 24694 (9th Cir.).
An inmate sought to proceed as a pauper in a
federal civil rights lawsuit, but the trial court denied them permission to do
so and dismissed the complaint because the plaintiff had "three strikes"
within the meaning of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g).
The third of those cases had been dismissed after the trial court found that
the sole named defendant was entitled to prosecutorial immunity. A federal
appeals court ruled that cases dismissed on the basis of immunity are not among
the types of dismissals listed as "strikes" in the statute, so that
third dismissal was not a strike. The dismissal of the immediate case,
therefore, was vacated. Castillo-Alvarez v. Krukow, #14-2263, 2014 U.S. App.
Lexis 19335 (8th Cir.).
A prisoner claimed that the defendant prison
officials were responsible fot using excessive force against him on several
occasions. After the lawsuit was dismissed, he appealed, and sought an order
giving him the trial transcript for free on the basis of poverty. Denying this
request, the appeals court noted that he was not--and could not--proceed as a
pauper because he had "three strikes (meritless lawsuits), and the
exception for prisoners in imminent danger of serious physical injury did not
apply. Maus v. Baker, #13-2420, 2013 U.S. App. Lexis 18661 (7th Cir.).
A prisoner filed a lawsuit against a health care
service and five medical professionals claiming that they were deliberately
indifferent to his chronic serious medical conditions of diabetes and Hepatitis
C, and that this had caused the need for partial amputation of his feet and
visual impairment. He argued that this deliberate indifference was ongoing,
subjecting him to a risk of coma, death, or further amputations. While he had
filed three previous lawsuits dismissed as frivolous, he was not precluded from
proceeding as a pauper on the current lawsuit under the "three
strikes" rule of the Prison Litigation Reform Act because his claims of an
ongoing risk of additional harm fell within the "imminent danger"
exception to that rule. Vandiver v. Prison Health Servs., Inc. #11-1959, 2013
U.S. App. Lexis 17028, 2013 Fed App. 234P (6th Cir.).
A federal trial court denied a prisoner the right
to proceed with his lawsuit as a pauper under the "three strikes"
rule of the Prison Litigation Reform Act, and ordered dismissal of the lawsuit
if he failed to pay the required filing fee. The prisoner had, according to the
trial court, accumulated three of his strikes while litigating a petition for
habeas corpus challenging his criminal conviction and not raising any issues
concerning his conditions of confinement. The federal appeals court ruled that
since that his petition and its appeal were not civil actions for purposes of
the three strikes rule, their dismissals were not "strikes." Since
that eliminated three of his supposed five strikes, he should be allowed to
proceed with his lawsuit as a pauper. Jones v. Smith, #12-401, 2013 U.S. App.
Lexis 12446 (2nd Cir.).
A prisoner's federal civil rights lawsuit
against correctional officials was dismissed on a motion for summary judgment.
He sought to proceed as a pauper on appeal, and argued that he was not barred
from doing so under the "three strikes" rule of the Prison Litigation
Reform Act because the dismissals occurred at the summary judgment stage. The
appeals court rejected this, stating that the issue, for the "three
strikes" rule was whether there were three or more prior dismissals of a case
as frivolous, malicious, or failing to state a claim, not what the procedural
stage of the case was when the case was dismissed. As he had more than three
prior dismissals that expressly stated they were because his lawsuits were
frivolous, malicious, or failed to state a claim, the "three strikes"
rule applied. Blakely v. Wards, #11-6945, 2012 U.S. App. Lexis 25564 (4th
Cir.).
A prisoner claimed that a correctional facility failed
to enforce a grooming policy requiring that each inmate barber have three interchangeable
razor heads, with one being disinfected while another was in use. He argued
that this exposed him to a risk of infection. He sought to proceed on the
lawsuit as a pauper and the trial court dismissed the claim, which was the
plaintiff's third dismissal; for failure to state a claim. A federal appeals
court interpreting the "three strikes rule" of the Prison Litigation
Reform Act ruled that the dismissal of the immediate claim could not count as
the third strike for purposes of the rule, as it was not a third
"prior" dismissal. Counting it as the third strike would effectively
insulate the dismissal itself from appellate review. Henslee v. Keller,
#11-6707, 681 F.3d 538 (4th Cir. 2012) The
"three strikes" provision of the Prison Litigation Reform Act,
barring a prisoner from proceeding in court as a pauper after "three
strikes," applies only when three of his prior lawsuits have been entirely
dismissed as frivolous, malicious, or failing to state a claim. The trial court
therefore acted erroneously in regarding a plaintiff prisoner as having
"three strikes" when only some claims in each of three prior lawsuits
had been dismissed on such grounds. Tolbert v. Stevenson, #09-8051, 2011 U.S.
App. Lexis 2814 (4th Cir.).
The "three strikes" provision of the
Prison Litigation Reform Act, barring a prisoner from proceeding in a federal
civil rights lawsuit as a pauper after three prior lawsuits have been dismissed
as frivolous, malicious, of failing to state a claim, applies to lawsuits filed
by prisoners while incarcerated, even if they are later released. Additionally,
a court can rely on the docket sheet entries of prior dismissals to determine
whether the prisoner has "strikes," and the court had no obligation
to examine the actual orders of dismissal. The three strikes rule is not an
affirmative defense that has to be raised in the defendant's pleadings, and the
court can therefore apply the requirement itself. The plaintiff prisoner, who
claimed he was assaulted while incarcerated and denied medical care for his
injuries, was not entitled to an exception to the rule, as he was not in
imminent danger of serious harm when he filed his lawsuit. Harris v. City of
New York, #09-0081, 2010 U.S. App. Lexis 11128 (2nd Cir.).
A prisoner who had three prior strikes was barred
from proceeding as a pauper under the "three strikes" provision of
the Prison Litigation Reform Act when he could not show that he was in imminent
danger of serious physical harm. The appeals court applied this rule to a
federal civil rights lawsuit that the prisoner filed while incarcerated
claiming that various defendants conspired to violate his rights in connection
with a prior civil suit he filed against his former employer, and in connection
with his arrest and conviction for indecent behavior with a juvenile. Lyles v.
Lemmon, #10-30276, 2010 U.S. App. Lexis 26152 (Unpub. 5th Cir.).
A prisoner was barred, under the
"three strikes" provision of the Prison Litigation Reform Act, 28
U.S.C. Sec. 1915, from proceeding as a pauper with his lawsuit claiming that
guards threatened his life, tampered with his food, denied him medical
treatment, heat, and running water, and put feces and urine in his cell when he
was housed in quarantine. The prisoner also alleged that prison officials
encouraged other prisoners to attack him. The plaintiff brought three or more
prior lawsuits that were dismissed as frivolous, and he did not qualify for an
exception to the "three strikes" rule, since he was not facing an
imminent danger of serious physical injury. The appeals court found that the
prisoner engaged in a pattern of repeatedly filing frivolous lawsuits and
repeatedly claiming the "imminent danger" exception to try to evade
the "three strikes" rule. Brown v. City of Philadelphia, #08-2419,
2009 U.S. App. Lexis 10790 (3rd Cir.).
A lawsuit by a prisoner dismissed for failure to state
a claim and/or for frivolousness prior to the 1996 enactment of the Prison
Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321, counted as a
"strike" for purposes of the "three-strikes" rule in 28
U.S.C Sec. 1915(g) of the Act. As the prisoner therefore had more than three
"strikes," he was barred from proceeding as a pauper (without paying
filing fees). Additionally, his claims did not fall within the exception to the
three strikes rule for claims involving an imminent risk of serious physical
danger. The prisoner, therefore, was required to pay a $350 filing fee to
proceed with his lawsuit. McGee v. Maki, Case No. 2:08-cv-204, 2008 U.S. Dist.
Lexis 90589 (W.D. Mich.).
A prisoner was barred from proceeding as a pauper
in his lawsuit claiming that he was illegally housed in administrative
segregation, when he had previously had three lawsuits dismissed as frivolous
or for failure to state a claim. A prior lawsuit challenging the banning of
tobacco as a civil rights violation counted as a "strike," since a
later lawsuit found to have possible merit was not identical, instead revolving
around the ban of snuff and similar tobacco substitutes. Larson v. Gonzales, CV
F 08 0740, 2008 U.S. Dist. Lexis 81555 (E.D. Calif.).
A prisoner's lawsuit was properly dismissed under
the "three strikes" rule provision of the Prison Litigation Reform
Act (PLRA), 28 U.S.C. Sec. 1915(g), as he had three-strikes from previous
litigation and failed to show that he was in "imminent danger" simply
because he was on a "food strike." Any threat of "imminent
danger" came from his own decision to cease eating and not from any
outside source. The court also noted that the prisoner, in each of three prior
lawsuits he filed since January of 2008, threatened in connection with each one
to go on a food strike to object to his detention. His lawsuits claimed that he
was illegally detained and had never been convicted or sentenced. In Re: Whitfield,
Misc. No. C-08-021, 2008 U.S. Dist. Lexis 25044 (S.D. Tex.).
While four prior lawsuits filed by the plaintiff
prisoner had been dismissed, two of them were dismissed on the basis that he
had failed to adequately affirmatively state exhaustion of remedies in his
complaints, a requirement that the court later eliminated. Those two
dismissals, therefore, were not for frivolous or malicious litigation or
failure to state a claim, and did not count as "strikes" for purposes
of the rule. A dismissal of the prisoner's lawsuit for failure to protect him
from assault by another inmate while in protective custody was therefore
overturned. Feathers v. McFaul, No. 07-3930, 2008 U.S. App. Lexis 8909 (6th
Cir.).
When a prisoner's lawsuit includes a number of
claims, and one or some claims are dismissed for failure to state a claim, but
other claims are allowed to proceed, the partial dismissal of the complaint
does not constitute a "strike" for purposes of the "three
strikes" provision of 28 U.S.C. Sec. 1915(g). Imposing such a
"strike" while allowing the prisoner to proceed with other claims in
the complaint would not further the purpose of the statute to deter frivolous
lawsuits. Tafari v. Hues, No. 04-Civ-5564, 2008 U.S. Dist. Lexis 17042 (S.D.N.Y.).
Prisoner was improperly denied the right to
proceed with a federal civil rights lawsuit as a pauper on the basis that he
had "three strikes" under 28 U.S.C. Sec. 1915(g) and his lawsuit did
not allege that he was in "imminent danger" of physical harm. The
appeals court noted, first, that all of the strikes were dismissals of lawsuits
that had not yet been entered when he filed his immediate lawsuit, and that the
inmate had appealed each of the dismissals and those appeals were not completed
at the time he filed this lawsuit. Dismissal of a lawsuit by a trial court
cannot count as a "strike" for purposes of the statute until appeal
rights on that dismissal have been exhausted. Further, the question of whether
or not a prisoner has "three strikes" for purposes of the statute
must be determined at the time he files his lawsuit. Nicholas v. Corbett, No.
07-2011, 2007 U.S. App. Lexis 26184 (3rd Cir.).
In an opinion on a previously unresolved issue, a
federal appeals court ruled that the dismissal of a lawsuit in which some
claims were dismissed for failure to state a claim and other claims were
dismissed for failure to exhaust available administrative remedies, the
dismissal counts as a strike for purposes of the "three strikes" rule
of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g). Under that rule, a
prisoner with three strikes is denied the right to proceed as a pauper with
further lawsuits, except in cases presenting a danger of imminent physical
harm. The appeals court found that the whole purpose of the "three
strikes" rule would be undermined if prisoners could avoid getting a
"strike" simply by adding "unexhausted" claims to a lawsuit
containing claims that would otherwise to summarily dismissed on the merits.
Pointer v. Wilkinson, No. 06-3393, 2007 U.S. App. Lexis 21250 (6th Cir.).
Even though the dismissal of the plaintiff
prisoner's prior five appeals, on the basis of his failure to prosecute them,
were not "strikes" for purposes of the Prison Litigation Reform Act's
"three strikes rule," 28 U.S.C. § 1915(g), the court could
properly deny his request that he be allowed to proceed as a pauper on another
appeal, on the basis of its supervisory discretion. Butler v. Dep't of Justice,
No. 05-5171, 2007 U.S. App. Lexis 15151 (D.C. Cir.).
A prisoner who had three or more previous
"strikes" under the "three strikes rule" of the Prison
Litigation Reform Act, 28 U.S.C. § 1915(g), should still be allowed to
proceed as a pauper in his immediate lawsuit without the payment of a $350 fee,
based on an exception for cases involving "imminent danger of serious
physical injury." The plaintiff's claim that he was being subjected to the
danger of exposure to communicable diseases because of a facility's housing
practices and failure to screen prisoners for such diseases fell within this
exception to the "three strikes rule." Andrews v. Cervantes, No.
04-17459, 2007 U.S. App. Lexis 15986 (9th Cir.).
Federal court rejects prisoner's argument that he
did not have three strikes against him under the "three strikes" rule
of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), based on the claim
that at the time he filed one of his prior civil lawsuits against a county
jail, he was released overnight and then rearrested the following day. Even if
he was briefly released, this did not change the fact that he was in custody at
the time the lawsuit in question was filed, so that it could properly be
counted as one of his three strikes. Buford v. Mounts, No. CV-F-02-6187, 2007
U.S. Dist. Lexis 41648 (E.D. Cal.).
Prisoner who claimed that defendant prison
employees had threatened to hit him in the mouth failed to show that he was in
imminent danger of serious physical injury, in the absence of which he was
properly denied the right to proceed as a pauper in his federal civil rights
lawsuit, based on the "three strikes rule" of the Prison Litigation
Reform Act, 28 U.S.C. Sec. 1915(g) and a finding that he had, on three or more
occasions, while incarcerated, brought lawsuits or appeals in U.S. courts that
were dismissed as frivolous, malicious, or for failure to state a claim on
which relief could be granted. Bozeman v. Johnson, No. 2:07-CV-290, 2007 U.S.
Dist. Lexis 26590 (M.D. Ala.), magistrate's recommendation adopted by 2007 U.S.
Dist. Lexis 32536 (M.D. Ala.).
Prisoner was improperly denied permission to
proceed as a pauper under the "three strikes" rule of the Prison
Litigation Reform Act, 28 U.S.C. Sec. 1915(g) when one of the
"strikes" relied on by the trial court was the dismissal of a lawsuit
which was still then on appeal. Such a dismissal does not count as a
"strike" under the statute until the prisoner either waives or
exhausts his appeals rights. Further, the fact that an appeals court
subsequently did uphold the dismissal of the prior lawsuit did not alter the
result, since the statute only conditions the right to bring the lawsuit as a
pauper on the number of "strikes" existing at the time the lawsuit is
initially filed, and does not authorize a court to revoke status as a pauper if
a plaintiff prisoner subsequently receives an additional "strike"
Lopez v. U.S. Dept. of Justice, No. 06-2409, 2007 U.S. App. Lexis 9403 (3rd
Cir.).
While a prisoner had previously had more than
three lawsuits dismissed as frivolous, malicious, or failing to state a claim
for which relief had been granted, he was not barred under 28 U.S.C. Sec.
1915(g) from proceeding as a pauper with his federal civil rights lawsuit, when
his complaint and attached materials claimed that he was facing an imminent danger
of serious physical harm. Claiborne v. Director of Corrections, No. 06-15996,
2007 U.S. App. Lexis 1534 (9th Cir.). [N/R]
A resident of a privately operated halfway house
was confined there for a criminal conviction, and therefore was a
"prisoner" for purposes of the "three strikes" rule of the
Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), denying prisoners the
right to proceed as paupers with federal civil rights claims (except for claims
involving imminent threats of physical harm) after three of their lawsuits are
dismissed as frivolous, brought for an improper purposes, or for failure to
state a claim. In this case, the plaintiff clearly had three such
"strikes." Jackson v. Johnson, No. 04-10419, 2007 U.S. App. Lexis 92
(5th Cir.). [N/R]
Dismissal of an appeal on the basis of the filing
of a premature notice of appeal did not constitute a "strike" for
purposes of the "three strikes" rule of the Prison Litigation Reform
Act, 28 U.S.C. Sec. 1915(g), since such a dismissal was based on a curable
procedural flaw, unlike a dismissal for making a frivolous claim or for failure
to state a claim on which relief can be granted. Tafari v. Hues, No. 05-0958,
2007 U.S. App. Lexis 190 (2nd Cir.). [N/R]
Federal trial court improperly dismissed a
prisoner's lawsuit under the "three strikes" rule in 28 U.S.C. Sec.
1915(g). Prior dismissals of lawsuits did not count as "strikes"
under the rule when the prisoner had not yet waived or exhausted his appeals in
those prior cases. Campbell v. Davenport Police Dep't, No. 06-3143 2006
U.S. App. Lexis 32030 (8th Cir.). [N/R]
Despite the fact that he had many more than three
prior "strikes" against him, i.e., lawsuits dismissed as frivolous or
for failure to state a claim, a prisoner was entitled to pursue as a pauper his
lawsuit claiming that he had been denied proper treatment for both Hepatitis C
and prostate cancer, since these claims constituted an allegation of imminent
danger constituting an exception to the "three strikes" rule of 28
U.S.C. Sec. 1915(g). Ibrahim v. District of Columbia, No. 05-5370, 2006 U.S.
App. Lexis 26676 (D.C. Cir.). [N/R]
Federal appeals court could not presume that a
prisoner faced a threat of imminent death or serious physical injury merely
because he claimed that he had been denied his heart medication, when he failed
to describe either the medical condition resulting in the prescription or that
he suffered a physical injury after he did not receive the medication. As a
result, the court upheld the trial judge's decision denying the prisoner, who
had previously had "three strikes," permission to proceed as a pauper
in his federal civil rights lawsuit. Skillern v. Deputy Warden Paul, No.
06-11440, 2006 U.S. App. Lexis 24841 (11th Cir.). [N/R]
The "routine" dismissal of a lawsuit over prison
conditions because of the failure to exhaust available administrative remedies
is not a "strike" for purposes of the Prison Litigation Reform Act's
"three strikes" rule. Green v. Young, No. 04-7252, 2006 U.S. App.
Lexis 18685 (4th Cir.). [2006 JB Sep]
Civilly committed Illinois sex offender is
subject to the "three strikes rule" of the Prison Litigation Reform
Act (PLRA), 28 U.S.C. Sec. 1915(g), barring him from filing further civil
rights lawsuits as a pauper after three such lawsuits have been found to be
frivolous. Additionally, he could not sue for damages for his allegedly
unconstitutional confinement when his commitment had not been previously
invalidated. Ring v. Knecht, No. 04-1487, 130 Fed. Appx. 51 (7th Cir. 2005).
[N/R]
Prisoner's claim that he was sprayed with a
chemical agent that damaged his lungs was insufficient to show an imminent
danger of serious physical injury sufficient to allow him to proceed as a
pauper with his federal civil rights lawsuit despite his prior failure, as a
frequent filer of civil rights lawsuit, to make progress towards the repayment
of unpaid filing fees from previously filed lawsuits. The complaint was
dismissed on the basis of the three strikes rule, as required by 28 U.S.C. Sec.
1915(g), barring a prisoner from proceeding as a pauper after having three
lawsuits dismissed as frivolous, except in cases of a risk of imminent physical
harm. Because four months had elapsed between the alleged injury and the filing
of the lawsuit, the prisoner could not show a risk of imminent danger. Cosby v.
Gray, 124 Fed. Appx. 595 (10th Cir. 2005). [N/R]
Mere fact that twenty-two prior actions filed by
prisoner had been dismissed did not suffice to show that he had suffered
"three strikes" under the Prison Litigation Reform Act barring him
from filing further lawsuits as a pauper unless he was in imminent danger of
physical harm. Burden was on the defendants to show that at least three of
these cases had been dismissed as frivolous, malicious, or for failure to state
an assertable claim. Dismissed habeas petitions and actions filed while the
plaintiff was in the custody of immigration authorities without facing criminal
charges did not count as "strikes" under the rule. Andrews v. King,
No. 02-17440, 398 F.3d 1113 (9th Cir. 2005). [2005 JB May]
Man held under Illinois sexually dangerous
persons statute, under which criminal proceedings are stayed for the purpose of
treatment for mental illness was a pretrial detainee properly classified as a
"prisoner" for purposes of the exhaustion of remedies requirement and
"three strikes" rule of the Prison Litigation Reform Act. His lawsuit
asserting a claim for alleged inadequate access to prison law library was
therefore properly dismissed for failure to exhaust available administrative
remedies. Kalinowski v. Bond, No. 02-3273, 358 F.3d 978 (7th Cir.), cert,
denied, 124 S. Ct. 2843 (2004). [2004 JB Dec]
Prisoner who had previous federal civil rights
claims dismissed had to supply court with copies of dismissal orders before
filing an amended complaint in his current lawsuit, so it could be determined
if they were judged to be frivolous, malicious, or to have failed to state a
claim, and therefore to bar him from proceeding as a pauper under the "three
strikes" provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C.
Sec. 1915(a). Abreu v. Ramirez, 284 F. Supp. 2d 1250 (C.D. Cal. 2003). [N/R]
Prisoner's federal civil rights lawsuit against
prison officials claiming that excessive force was used against him could not
be brought by him as a pauper because of the "three strikes"
provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) even if
the dismissals of his earlier cases as frivolous or failing to state a claim
took place before the effective date of the statute, when at least six previous
lawsuits brought by the prisoner were dismissed in this manner, and he failed
to claim that he was in any imminent danger of serious physical harm when he
filed the latest lawsuit. Wallace v. Franklin, No. 02-4308, 66 Fed. Appx. 546
(6th Cir. 2003). [N/R]
Prisoner's complaint about being compelled to
work in cold weather without warm clothing, or in hot, humid weather despite
his high blood pressure did not qualify as a claim of imminent danger of
serious physical harm coming under an exception to the "three
strikes" rule of the Prison Litigation Reform Act barring access to courts
as a pauper following the filing of three or more frivolous lawsuits. Martin v.
Shelton, No. 02-2770, 319 F.3d 1048 (8th Cir. 2003). [2003 JB Jun]
Trial judge was not bound by the ruling of
another judgment, in another case involving the same plaintiff prisoner, that a
prior case with some claims dismissed as frivolous and others dismissed for
failure to exhaust administrative remedies did not count as a
"strike" for purposes of the "three strikes" rule of the
Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) prohibiting a prisoner for
proceeding as a pauper following three prior frivolous claims. Judge rules that
it did, in fact, constitute a "strike." Clemons v. Young, 240 F.
Supp. 2d 639 (E.D. Mich. 2003). [N/R]
Prisoner who had filed over 200 prior civil
actions in federal courts, many of which were dismissed as frivolous, was
barred by the "three strikes" rule of the Prison Litigation Reform
Act, 28 U.S.C. Sec. 1915(g), from proceeding as a pauper in his most recent
filing when he could not show that he was in "imminent danger of physical
injury" at the time the complaint was filed, which is the sole exception
to the "three strikes" rule. Court notes that allegations of past
physical danger are insufficient to invoke the exception. Judd v. Furgeson, 239
F. Supp. 2d 442 (D.N.J. 2002). [N/R]
Provisions of the Prison Litigation Reform Act, 28
U.S.C. Sec. 1915(g), prohibiting prisoners with three "strikes"
(three lawsuits previously dismissed as frivolous or failing to state a cause
of action) from proceeding as a pauper with further litigation unless a
prisoner is at imminent risk of serious harm, was not
"jurisdictional" in nature, but rather required the payment of filing
fees before the court can review the merits of the "three-strikes"
prisoner's claims. Further, the appeals court had "some discretion"
to hear an appeal without the payment of the fees. In this case, however, the
court would dismiss the prisoner's complaint for failure to prosecute if he did
not pay the filing fees. Dubic v. Johnson, #01-5122, 314 F.3d 1205 (10th Cir.
2003). [N/R]
Prisoner who had filed three previous lawsuits
dismissed as frivolous could not pursue additional litigation as a pauper, but
instead had to pay the required filing fee before proceeding with his lawsuit
claiming that his rights were violated when a correctional officer asked him,
in front of other prisoners, to supply the names of inmates engaged in selling
drugs at the prison. Butler v. U.S., #01-6447, 53 Fed. Appx. 748 (6th Cir.
2002). [N/R]
Prisoner's claim that he is currently being
denied medical care for acid reflux and painful cysts on his vocal cords could
pursue his lawsuit without prepaying a filing fee, despite having three
previous lawsuits which were dismissed for failure to state a claim, under an
"imminent danger" exception. State prison non-medical personnel, however,
were not subject to liability for deliberate indifference to his serious
medical needs when they relied on the medical judgment of prison medical
personnel in denying the prisoner's medical grievances. Bond v. Aguinaldo, 228
F. Supp. 2d 918 (N.D. Ill. 2002). [2003 JB Mar.]
A federal prisoner's prior frivolous habeas
petition under 28 U.S.C. Sec. 2241 challenging the conditions of his
confinement counted as a strike, under the "three strikes" provision
of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) precluding an
inmate from bringing further lawsuits or appeals as a pauper after three prior
frivolous actions. Appeals court denies prisoner's motions to proceed as a
pauper in appeals of eight separately dismissed federal cases. Owens-El v.
United States, Nos. 02-1281, etc. 49 Fed. Appx. 247 (10th Cir. 2002).[N/R]
296:120 Man
confined in a state mental hospital based on a finding of not guilty by reason
of insanity was not a "prisoner" for purposes of the Prison
Litigation Reform Act's filing fee or "three strikes" rules; no rule
prohibited him from pursuing federal civil rights claim himself rather than
through his court-appointed guardian. Kolocotronis v. Morgan, No. 01-1308WM,
247 F.3d 726 (8th Cir. 2001).
284:124
Prisoners' lawsuits dismissed as "frivolous" or malicious, or for
failure to state a claim, prior to effective date of Prison Litigation Reform
Act still counted as "strikes" for purposes of the Act's "three
strikes" rule prohibiting prisoners from pursuing claims as
"paupers" after three such dismissals, in the absence of a claim of
"imminent danger of serious physical injury." Ibrahim, In Re., v.
District of Columbia, #96-7069, 208 F.3d 1032 (D.C. Cir. 2000).
285:137 Federal
appeals court holds that frivolous lawsuits filed prior to the effective date
of the Prison Litigation Reform Act's "three strikes" rule could
count as "strikes" for purposes of provision barring prisoner from
pursuing a further federal civil rights case as a "pauper" without
paying the full filing fee in the absence of a threat of imminent physical
danger; trial court rejected prisoner's claim that he was facing an imminent
physical peril from an alleged "conspiracy" of correctional officials
to injure or kill him. Welch v. Galie, #99-0229, 207 F.3d 130 (2nd Cir. 2000).
[N/R] Prisoner's
prior habeas corpus action was not a "civil action" for purposes of
the PLRA's "three- strikes" rule. Jennings v. Natrona County
Detention Center Medical Facility, No. 98-8032, 175 F.3d 775 (10th Cir. 1999).
267:41 Prisoner
who asserted that he had been assaulted twice in the past by the same prisoner
stated sufficient claim for "imminent danger" to invoke exception to
Prison Litigation Reform Act section prohibiting him from proceeding as pauper
in federal civil rights lawsuit because he had filed three previous frivolous
lawsuits. Ashley v. Dilworth, #97-4082, 147 F.3d 715 (8th Cir. 1998).
267:42 Texas
prisoner complaining that body cavity searches were used to sexually harass him
could not proceed as pauper in lawsuit or appeal of dismissal when he
previously filed four frivolous lawsuits and did not allege imminent danger of
serious physical harm at time of filing lawsuit or appeal. Banos v. O'Guin,
#97-40354, 144 F.3d 883 (5th Cir. 1998).
268:56 Prisoner's
claim that he was forced to continuously breath dust and lint particles from a
vent in his cell could be sufficient to state a "imminent danger of
serious physical injury" triggering an exception to the Prison Litigation
Reform Act's bar on him proceeding as a pauper in a federal civil rights
lawsuit after having three prior lawsuits dismissed as frivolous. Gibbs v.
Cross, #96-3618, 160 F. 3d 962 (3rd Cir. 1998).
268:58 Verbal
threat by correctional officer to have prisoner killed could be sufficient,
under certain circumstances, to state a claim for excessive use of force.
Chandler v. D.C. Dept. of Corrections, #96-5166, 145 F.3d 1355 (D.C. Cir.
1998).
269:72 Federal
appeals court rules that "three strikes" rule, barring prisoners from
proceeding as paupers in lawsuits filed after three prior such suits were
dismissed as frivolous, can not be applied retroactively to revoke pauper
status already granted prior to effective date of rule. Gibbs v. Ryan,
#96-3528, 160 F.3d 160 (3rd Cir. 1998).
[N/R] Trial
court erred in enjoining application of Prison Litigation Reform Act to
prisoner as a sanction for defense attorney's alleged frivolous argument;
further, court determined that attorney's arguments were not frivolous. Sargent
v. Saunders, #96-7113, 136 F.3d 349 (4th Cir. 1998).
[N/R] Further
proceedings ordered to address apparent incongruity between dismissal of
lawsuit by trial court and that same court's decision to allow the prisoner to
proceed as a pauper on appeal. Choyce v. Dominguez, 397- 41292, 160 F.3d 1068
(5th Cir. 1998).
[N/R]
"Three strikes" rule could be applied to foreclose prisoner's federal
civil rights claim based on pre- Prison Reform Litigation Act dismissals of
lawsuits as frivolous. Wilson v. Sanford, No. 96-3023, 96-4323, 148 F.3d 596
(6th Cir. 1998).
255:39 Prisoner
who had previously had three lawsuits dismissed as frivolous could still
proceed with new lawsuit, despite "three strikes" rule of Prison
Litigation Reform Act, when new lawsuit claimed that prison librarian put him
in imminent threat of serious physical injury by allowing inmate law clerk to
read his legal papers indicating that he was a government informant. Gibbs v.
Roman, 116 F.3d 83 (3rd Cir. 1997). 253:10 Prison Litigation Reform Act provision
denying prisoners the right to file civil lawsuits as paupers after having
three prior suits dismissed as frivolous or malicious is upheld. Carson v.
Johnson, 112 F.3d 818 (5th Cir. 1997).
258:87 Federal
appeals court rules that dismissal of a lawsuit as frivolous, or dismissal of
an appeal as frivolous, will each count as one "strike" against a
prisoner under the "three strikes" rule of the Prison Litigation
Reform Act, even if the prisoner paid a full filing fee for the lawsuit or
appeal. Duvall v. Miller, 122 F.3d 489 (7th Cir. 1997).
[N/R] Prisoner
who filed appeal after trial court certified that appeal would not be taken in
good faith could still proceed with appeal, but must pay full amount of
appellate filing fee, either in installments or else pay the full amount
"up front" if he has acquired "three strikes" before
through frivolous lawsuits or appeals. Henderson v. Norris, 129 F.3d 481 (8th
Cir. 1997).
238:147 Federal
Prison Litigation Reform Act becomes law, makes numerous changes in prison
litigation, including scope of injunctive orders, standards for termination of
injunctive orders, amount of attorneys' fees, standard for prisoner release
orders in overcrowding cases, prisoner payment of filing fees and court costs,
barring inmates who repetitively file frivolous suits from further filings, no
awards for mental/emotional distress in the absence of physical injury, and
revocation of federal prisoner's good time credits if they file malicious
lawsuits or testify falsely, among other highlights.