PLRA; In forma pauperis; three strikes
A dismissal for lack of jurisdiction does not warrant imposing a strike, at least where the assertion of jurisdiction was not found to be frivolous.
“The district court in Haury v. Rose Brothers Trucking, Inc. wrote that it lacked jurisdiction over two of Haury’s claims. It is of course possible that the judge also considered that suit frivolous, but he did not say so at the time. He could not have known that the PLRA (enacted three years later in 1996) would make the precise ground of his decision important in another suit so many years later. Where the judge did not make such findings, we cannot read into his decision a ground for dismissal that he did not state, and which would also substantially limit Haury’s ability to file a lawsuit. Because the district court in 1993 did not dismiss the entirety of Haury’s earlier case for one of the three bases listed in § 1915(g), the district court erred in imposing a strike in this case in 2011. See Turley, 625 F.3d at 1008-09; Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir. 2011) (‘§ 1915(g) requires that a prisoner’s entire “action or Appeal” be dismissed on enumerated grounds in order to count as a strike’); Thompson, 492 F.3d at 432.
Accordingly, Haury has only two strikes, not three, and he remains eligible for pauper status if he qualifies otherwise.”
Reversed and Remanded.
11-2148 Haury v. Lemmon
Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Per Curiam.