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

they ought to have a chance to think it over before proceeding. 111 In a class action, only
named plaintiffs are subject to the three strikes provision. 112
One court has held that a dismissal counts as a strike even if the case was filed by an exprisoner
after release, if the plaintiff later returns to prison. 113 However, this holding would
seem contrary to the statutory language, which refers to prior actions brought “while
incarcerated or detained.” 114
Appeals count as separate strikes under Section 1915(g) only if they are “dismissed ...
[as] frivolous, malicious, or fail[ing] to state a claim upon which relief may be granted.” 115 If
the appeals court merely affirms a district court decision that was dismissed for one of the
reasons stated in Section 1915(g), the appeal is not a separate strike. 116 An appeal that is
dismissed on grounds other than those stated in Section 1915(g) cannot be a separate strike
even if the district court decision counts as a strike. 117
Some courts have held that “[a] dismissal should not count against a petitioner until he
has exhausted or waived his appeals.” 118 Thus, if you receive a third strike in a district court
decision, you should still be able to appeal that decision in forma pauperis without being
111. Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999) (dismissing habeas corpus actions and
indicating plaintiffs may re-file complaints as civil rights claims).
112. Meisberger v. Donahue, 245 F.R.D. 627, 630 (S.D. Ind. 2007).
113. See Robbins v. Switzer, 104 F.3d 895, 897 (7th Cir. 1997) (holding dismissal would count as
strike if released petitioner ever returns to prison).
114. 28 U.S.C. § 1915(g) (2000). See Arvie v. Lastrapes, 106 F.3d 1230, 1232 (5th Cir. 1997) (per
curiam) (remanding to determine whether the plaintiff was a prisoner when he filed his previous
actions).
115. 28 U.S.C. § 1915(g) (2000). See Newlin v. Helman, 123 F.3d 429, 433 (7th Cir. 1997) (holding
that frivolous appeal of a dismissed claim counts as a second strike). Compare with Andrews v. King,
398 F.3d 1113, 1120–21 (9th Cir. 2005) (holding that an appeal dismissed for lack of jurisdiction is not
a strike).
116. Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999)
(“Under the plain language of the statute, only a dismissal may count as strike, not the affirmance of
an earlier decision to dismiss.”); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (“It is
straightforward that affirmance of a district court dismissal as frivolous counts as a single ‘strike.’”);
Barela v. Variz, 36 F. Supp. 2d 1254, 1258 (S.D. Cal. 1999) (“Insofar as an affirmance is not concerned
with the merits of the appeal but is rather a finding of no error at the district court level, it should not
count as a strike.”); Freeman v. Lee, 30 F. Supp. 2d 52, 54 n.3 (D.D.C. 1998) (holding that a circuit
court’s affirmation of a § 1915(g) dismissal does not count as second strike); see also Henderson v.
Norris, 129 F.3d 481, 485 n.4 (8th Cir. 1997) (recognizing that appeals of claims found to be frivolous
are not automatically also frivolous).
Courts are not always careful in dealing with this issue. See Montanez v. DeTella, No. 97-3698,
1999 U.S. App. LEXIS 628, at *6 (7th Cir. Jan. 14, 1999) (unpublished) (stating affirmance of appeal
from dismissal is itself a second strike, without discussing contrary authority); Rice v. Christopher, No.
98-1295, 1999 U.S. App. LEXIS 2040, at *5–6 (10th Cir. Feb. 9, 1999) (unpublished) (“Because a
complaint dismissed under § 1915(e)(2)(B)(i) and affirmed on appeal counts as two prior occasions for
purposes of § 1915(g), two ‘strikes’ are recorded against Mr. Rice.”). If you get a decision like this, be
sure to ask the court to reconsider charging you with the second strike.
117. Tafari v. Hues, 473 F.3d 440, 442–44 (2d Cir. 2007) (holding an appeal dismissed as
premature was not a strike); Cosby v. Knowles, No. 97-1400, 145 F.3d 1345, 1998 U.S. App. LEXIS
7845, at *4–5 (10th Cir. Apr. 23, 1998) (unpublished) (noting that dismissal based on denial of in forma
pauperis status, not the merits, is not a strike even though merits were frivolous).
118. Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996); accord Thompson v. Drug
Enforcement Admin., 492 F.3d 428, 432 (D.C. Cir. 2007) (“A contrary rule would, within those narrow
set of cases in which the third strike is appealed, effectively eliminate our appellate function. Had
Congress intended such an unusual result, we expect it would have clearly said so.”); Campbell v.
Davenport Police Dep’t, 471 F.3d 952, 953 (8th Cir. 2006). Once the time for appeal has passed, filing a
late notice of appeal will not keep the dismissal from being a strike. Smith v. District of Columbia, 182
F.3d 25, 27–28 (D.C. Cir. 1999).