Civil Rights – PLRA – three strikes

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Civil Rights
PLRA; three strikes

Where a prisoner’s previous lawsuits were dismissed for lack of prosecution, they do not count as strikes under the PLRA that bar him from filing new suits in forma pauperis.

“Judge Lawrence described the three earlier cases as each having been ‘dismissed on the grounds that it was frivolous or failed to state a claim.’ They indeed failed to state a claim and each should have been dismissed with prejudice on that ground.”

“That said, we think the plaintiff was entitled to take the previous dismissals at face value, and since none of them was based on any of the grounds specified in section 1915(g), to infer that he was not incurring strikes by the repeated dismissals. The statute is explicit, and the case law confirms, see, e.g., Haury v. Lemmon, No. 11-2148, slip op. at 4-5 (7th Cir. Aug. 25, 2011) (per curiam); Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007), that classifying a dismissal as a strike depends on the grounds given for it; since most prisoners litigate their civil claims pro se, they should not be required to speculate on the grounds the judge could or even should have based the dismissal on. It is true that had the plaintiff appealed any of his previous dismissals, we might have affirmed on a ground, different from the district judge’s, that would have given him a strike. Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). But that is different from giving a prisoner a strike, especially a third strike, when no court had mentioned a ground for dismissal specified in the statute for calling a strike.”

Reversed and Remanded.

10-3670 Paul v. Marberry

Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Posner, J.

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