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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that dismissal for lack of jurisdiction warrants a strike under 28 U.S. §1915(g), though we have upheld a strike in an unpublished order where a district court dismissed a frivolous lawsuit, at least where the assertion of jurisdiction was itself also frivolous,” the per curiam opinion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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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