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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that dismissal for lack of jurisdiction warrants a strike under 28 U.S. §1915(g), though we have upheld a strike in an unpublished order where a district court dismissed a frivolous lawsuit, at least where the assertion of jurisdiction was itself also frivolous,” the per curiam opinion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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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