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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that dismissal for lack of jurisdiction warrants a strike under 28 U.S. §1915(g), though we have upheld a strike in an unpublished order where a district court dismissed a frivolous lawsuit, at least where the assertion of jurisdiction was itself also frivolous,” the per curiam opinion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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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