7th Circuit examines 3-strike rule on prisoner suits

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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that dismissal for lack of jurisdiction warrants a strike under 28 U.S. §1915(g), though we have upheld a strike in an unpublished order where a district court dismissed a frivolous lawsuit, at least where the assertion of jurisdiction was itself also frivolous,” the per curiam opinion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.


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues