ILNews

7th Circuit examines 3-strike rule on prisoner suits

Back to TopCommentsE-mailPrintBookmark and Share

The 7th Circuit Court of Appeals has followed in the footsteps of some of its sister Circuits, holding that a pro se prisoner suit should proceed because an Indiana federal judge wrongly determined the frequent suit-filing inmate had three strikes rather than two in terms of frivolous claims.

In a decision Thursday in Michael Hunter Haury v. Bruce Lemmon, et al., No. 11-2148, a three-judge panel granted pro se prisoner Michael Haury’s request to proceed in forma pauperis on appeal and reversed a decision by U.S. Judge Robert Miller in the Northern District that found the inmate had already filed too many suits considered “frivolous”

Haury filed the 42 U.S.C. §1983 suit against prison personnel and other defendants, alleging that they violated his civil rights by interfering with the delivery of his mail and failing to provide a sufficient law library in prison. Judge Miller denied Haury’s request to proceed as a pauper on the grounds that three prior suits had already been dismissed as frivolous under the Prison Litigation Reform Act of 1995 and that prohibits him from filing any more. An exemption applies if the prisoner is in danger of serous injury, but that wasn’t the case here.

On appeal, the panel made up of Judges John Coffey, David Hamilton, and Ilana Diamond Rovner found a problem with how Judge Miller determined Haury already had three strikes under his belt and couldn’t move forward on this suit. The District judge cited a Southern District of Indiana case from the early 1990s that he described as being “frivolous for want of jurisdiction.” But the appeals judges noted that isn’t accurate since the court had dismissed part of that complaint for failing to state a claim and the rest for lack of jurisdiction. Since the court didn’t go as far as saying the claims were frivolous, that can’t be held here when applied to this instant case.

“We have never held in a published opinion that dismissal for lack of jurisdiction warrants a strike under 28 U.S. §1915(g), though we have upheld a strike in an unpublished order where a district court dismissed a frivolous lawsuit, at least where the assertion of jurisdiction was itself also frivolous,” the per curiam opinion says. “Dismissal for failure to state a claim is an enumerated ground for acquiring a strike, but the statute does not mention dismissal for lack of jurisdiction.”

Other courts – such as the 2nd, 9th, and District of Columbia Circuit courts – have held that dismissal for lack of jurisdiction doesn’t warrant imposing a strike, and the 7th Circuit panel found that reasoning persuasive.

“We agree that a dismissal for lack of jurisdiction does not warrant a strike … at least when the assertion of jurisdiction is not itself found to be frivolous,” the ruling says.

As a result, Haury has only two strikes and remains eligible for pauper status if he qualifies otherwise. Judge Miller will need to determine if a viable claim exists and if it might earn the inmate a third strike, but that remains open.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

ADVERTISEMENT