A Jailhouse Lawyer's Manual Chapter 14 - Columbia Law School

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immunity. 77 A factually frivolous suit is one alleging “fantastic or delusional scenarios.” 78 A malicious suit is one filed for an improper purpose or amounting to abuse of the legal system. 79 A case dismissed on grounds other than frivolousness, maliciousness, or failure to state a claim is not a strike. 80 Dismissal for suing an immune defendant is not a strike, since that reason does not appear in § 1915(g), even though it appears in other PLRA sections pertaining to in forma pauperis proceedings. 81 Dismissals are not strikes if they are on grounds such as lack of prosecution, 82 lack of jurisdiction, 83 or expiration of the statute of limitations. 84 A grant of summary judgment—which is based on the absence of material issues of fact— on part or all of a case is generally not a strike. 85 One reason this is particularly important is 77. Neitzke v. Williams, 490 U.S. 319, 327–28, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338, 348–49 (1989); Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991) (holding dismissal of claim on grounds of frivolousness where statute of limitations had expired to be appropriate). 78. Neitzke v. Williams, 490 U.S. 319, 328, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338, 348 (1989). 79. See Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993) (citing repetitive litigation as malicious); Spencer v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987) (holding that case filed out of desire for vengeance and not to remedy a violation of legal rights was malicious), aff’d, 826 F.2d 1061 (4th Cir. 1987). 80. See Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007) (refusing to treat an appeal dismissed as premature as a strike, stating the PLRA “was designed to stem the tide of egregiously meritless lawsuits, not those temporarily infected with remediable procedural or jurisdictional flaws”); Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005); Fortson v. Kern, No. 05-CV-73223-DT2005, 2005 U.S. Dist. LEXIS 38466, at *4–5 (E.D. Mich. Dec. 19, 2005) (unpublished) (holding dismissal for failure to pay initial filing fee is not a strike); Maree-Bey v. Williams, No. 04-1759 (RCL), 2005 U.S. Dist. LEXIS 35722, at *7 (D.D.C. Aug. 1, 2005) (unpublished) (holding dismissal under Rule 8 of the Federal Rules of Civil Procedure is not a strike). 81. Searcy v. Federal Bureau of Prisons, No. 6:07-cv-3146-GRA2007, U.S. Dist. LEXIS 90367, at *12 (D.S.C. Dec. 6, 2007) (unpublished). 82. Butler v. Department of Justice, 492 F.3d 440, 443–45 (D.C. Cir. 2007) (holding dismissal for lack of prosecution is not a strike); Harden v. Harden, No. 8:07CV68, 2007 U.S. Dist. LEXIS 56922, at *3 (D. Neb. Aug. 3, 2007) (unpublished) (dismissals for lack of jurisdiction or failure to prosecute are not strikes); Green v. Dewitt, No. 8:06-0626-MBS, 2006 U.S. Dist. LEXIS 26882, at *3 (D.S.C. Apr. 20, 2006) (unpublished) (declining to treat dismissal for failure to prosecute as a strike). A recent decision holding that “[a] history of failure to prosecute is akin to the filing of a frivolous claim” and is a strike, Gill v. Pidlypchak, No. 9:02-cv-1460 (FJS/RFT), 2006 WL 3751340, at *4 n.7 (N.D.N.Y. Dec. 19, 2006) (unpublished), appears to be wrong, since the statute does not refer to claims that are “akin” to frivolous claims. 83. Thompson v. Drug Enforcement Admin., 492 F.3d 428, 437 (D.C. Cir. 2007); Daniels v. Woodford, No. CV 07-6975 PA(JC), 2008 WL 2079010, at *6, 8 (C.D. Cal. May 13, 2008) (unpublished); Ray v. Seventh Ave. Co., No. 07-C-331-C, 2007 U.S. Dist. LEXIS 51096, at *4–5 (W.D. Wis. July 11, 2007) (unpublished); Harden v. Harden, No. 8:07CV68, 2007 U.S. Dist. LEXIS 56922, at *3 (D. Neb. Aug. 3, 2007) (unpublished). 84. Myles v. U.S., 416 F.3d 551, 553 (7th Cir. 2005) (noting that dismissal based on limitations is not a strike since it is based on an affirmative defense); Daniels v. Woodford, No. CV 07-6975 PA(JC), 2008 WL 2079010, at *6, 8 (C.D. Cal. May 13, 2008) (unpublished). 85. See Stallings v. Kempker, No. 04-1585, 109 F. App’x 832, 2004 U.S. App. LEXIS 1931, at *1 (8th Cir. 2004) (unpublished); Chavis v. Curlee, No. 9:06-CV-0049 (LEK/GHL), 2008 WL 508694, at *4 (N.D.N.Y. Feb. 21, 2008) (unpublished); Ramsey v. Goord, No. 05-CV-47A, 2007 WL 1199573, at *2 (W.D.N.Y. Apr. 19, 2007) (unpublished); Chappell v. Pliler, No. CIV S-04-1183 LKK DAD P, 2006 U.S. Dist. LEXIS 92538, at *9 (E.D. Cal. Dec. 21, 2006) (unpublished) (“The granting of summary judgment on some claims precludes a determination that the case was dismissed for failure to state a claim on which relief could be granted.”); Barela v. Variz, 36 F. Supp. 2d 1254, 1259 (S.D. Cal. 1999) (determining grant of summary judgment in the present case did not count as a strike because court never reached the merits); Walker v. Kidney Doctor, No. 96 Civ. 7746, 1997 U.S. Dist. LEXIS 17677, at *5–7 (S.D.N.Y. Nov. 7, 1997) (unpublished) (noting earlier grant of summary judgment against plaintiff
government lawyers often improperly file motions to dismiss claims that raise disputed factual issues. The court should treat these as summary judgment motions, even though the government called them motions to dismiss for failure to state a claim. 86 If you are in this situation, it is very important that you call the court’s attention to the fact that there is a disputed factual issue. That way, even if you lose, you will lose by summary judgment, and not by a dismissal for failure to state a claim that will be counted as a strike. Failure to exhaust administrative remedies is not a failure to state a claim unless apparent on the face of the complaint. 87 That means dismissal for non-exhaustion should generally not be a strike. 88 Some courts have held a case dismissed for non-exhaustion is a strike, because it seeks “relief to which [the plaintiff] is not entitled” and is therefore is frivolous. 89 You can argue that these courts are wrong, because an unexhausted case does not necessarily fail to raise “an arguable question of law” or rest on an “indisputably meritless legal theory,” which as discussed above is what “frivolous” means. Further, one court interpreting the three strikes provision has said that the PLRA “was designed to stem the tide of egregiously meritless lawsuits, not those temporarily infected with remediable procedural or jurisdictional flaws.” 90 Certainly, if you had an argument in an earlier case that what you did should have satisfied the exhaustion requirement, or that no administrative remedy was really available to you, that case should not be viewed as frivolous and treated as a strike. Most courts have held a partial dismissal—that is, an order throwing out some claims or some defendants, but letting the rest of the case go forward—is not a strike, 91 nor is a case did not count as a strike). But see Davis v. Kakani, No. 06-13704, 2007 WL 2221402, at *2 (E.D. Mich. July 31, 2007) (unpublished) (holding summary judgment can be a strike if the decision says no claim was stated). 86. Motions to dismiss for failure to state a claim are distinct from motions for summary judgment as a matter of law. Compare Fed. R. Civ. P. 12(b)(6) (motion to dismiss) with Fed. R. Civ. P. 56 (summary judgment). 87. Jones v. Bock, 549 U.S. 199, 212–13, 127 S. Ct. 910, 920–21, 166 L. Ed. 2d 798, 812–13 (2007). 88. Before Jones v. Bock, a number of courts had already so held. See Snider v. Melindez, 199 F.3d 108, 111 (2d Cir. 1999) (holding non-exhaustion is not failure to state a claim and is not a strike); Green v. Young, 454 F.3d 405, 408–09 (4th Cir. 2006) (same); Smith v. Duke, 296 F. Supp. 2d 965, 965– 66 (E.D. Ark. 2003); Henry v. Med. Dep’t at SCI-Dallas, 153 F. Supp. 2d 553, 556 (M.D. Pa. 2001). One court has held that “[a] claim that fails to allege the requisite exhaustion of remedies is equivalent to one that fails to state a claim upon which relief may be granted” and so may be counted as a strike. Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998). But, that holding seems to be wrong, since Jones v. Bock holds prisoners are not required to allege exhaustion of remedies, and the statute does not authorize strikes for things a court considers “tantamount” to failing to state a claim anyway. The statement in Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1213 (10th Cir. 2003), that dismissal based on lack of exhaustion “may constitute a strike for purposes of 28 U.S.C. § 1915(g)” also seems to be based on that court’s view that exhaustion must be pleaded in the prisoner’s complaint, which was rejected in Jones v. Bock. 89. See, e.g., Wallmark v. Johnson, No. 2:03-CV-0060, 2003 U.S. Dist. LEXIS 7088, at *4 (N.D. Tex. Apr. 28, 2003) (unpublished). 90. Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007). 91. Thompson v. Drug Enforcement Admin., 492 F.3d 428, 432 (D.C. Cir. 2007) (statute does not apply to actions “containing at least one claim falling within none of the three strike categories”); Tafari v. Hues, 539 F. Supp. 2d 694, 701–02 (S.D.N.Y. 2008) (extensive discussion and review of case law); Maree-Bey v. Williams, No. 04-1759 (RCL), 2005 U.S. Dist. LEXIS 35722, at *1 (D.D.C. Feb. 24, 2006) (unpublished) (“Under the plain language of the statute, the dismissal of a claim in a pending action cannot possibly trigger the so-called three-strikes bar.”); Barela v. Variz, 36 F. Supp. 2d 1254, 1259 (S.D. Cal. 1999) (“Since the Court in that case reached Plaintiff's claims on the merits as to some of the defendants, this Court finds it unfair to penalize Plaintiff for including a defendant against whom he could not state a cause of action.”); Moore v. Doan, No. 98 C 2307, 1998 U.S. Dist. LEXIS 19624, at *14
Page 1 and 2: A Jailhouse Lawyer’s Manual Chapt
Page 3 and 4: CHAPTER 14 The Prison Litigation Re
Page 5 and 6: Prisoners who are granted IFP statu
Page 7 and 8: postage. 28 The twenty percent mont
Page 9 and 10: In upholding the statute, courts ha
Page 11 and 12: civilly committed in connection wit
Page 13: apply retroactively to prohibit or
Page 17 and 18: determined whether the prisoner is
Page 19 and 20: arred by the three strikes provisio
Page 21 and 22: serious allegations are disputed, t
Page 23 and 24: So far, the federal courts have uph
Page 25 and 26: One court has held that the PLRA pr
Page 27 and 28: possible basis to say that you file
Page 29 and 30: equirement. 193 PLRA exhaustion, ho
Page 31 and 32: in doubt, try to appeal, even if of
Page 33 and 34: are “special circumstances” jus
Page 35 and 36: or federal tort claim procedures, u
Page 37 and 38: eached differing decisions on matte
Page 39 and 40: (2) complaints pertaining to an all
Page 41 and 42: arise in connection with issues tha
Page 43 and 44: Courts have made a number of decisi
Page 45 and 46: after transfer. 275 Also, if a pris
Page 47 and 48: grievance appeal may make the appea
Page 49 and 50: However, courts are unlikely to be
Page 51 and 52: exhaustion of remedies if a prisone
Page 53 and 54: If there is some reason outside you
Page 55 and 56: general. 314 One court has said tha
Page 57 and 58: he was denied access to an orthoped
Page 59 and 60: grievance deadline, explain that yo
Page 61 and 62: prisoners who didn’t fully comply
Page 63 and 64: Rather, he had tried hard and in mu
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uled against prisoners in situation
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internal grievance but not from app
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The most thoughtful discussion of t
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grievance exhausts if it is rejecte
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(6) What if the prisoner fails to c
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ut didn’t try to address this con
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failure to exhaust. 402 As noted in
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directed that grievance officials c
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practice to put it in the complaint
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Until the issue of exhaustion is re
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(2) That you were a prisoner and th
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will be much stronger if you can sh
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limitations during exhaustion of ad
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One court has held that courts may
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damages, or an injunction, for ment
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Some courts have also held that com
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That approach is consistent with to
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this fact to the court’s attentio
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A variety of injuries short of visi
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denial of medical care; 539 and sti
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statutory definition of bodily inju
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H. Waiver of Reply The PLRA provide
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If the court does hold a hearing by
Page 111 and 112:
equirement of specific court findin
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a motion is made. The thirty days c
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A Jailhouse Lawyer's Manual Chapter 14 - Columbia Law School

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