Enacted in 1996, the Prison Litigation Reform Act raised numerous obstacles to prisoner rights lawsuits. The “three strikes” provision of the statute, codified at 28 U.S.C. § 1915(g), is intended to bar prisoners who have a history of frivolous litigation from proceeding in forma pauperis. IFP status results in the waiver of court filing fees that would otherwise be beyond that means of indigent litigants. For most prisoners, in light of their limited financial resources, a denial of IFP status is the functional equivalent of a denial of access to the courts.
Last week, in Turley v. Gaetz (No. 09-3847), the Seventh Circuit backed away from dicta in earlier decisions that seemed to embrace an exceptionally and unnecessarily broad reading of the three strikes bar. Had the court adhered to the earlier dicta, it would have opened a circuit split on a very important prisoner rights issue.
Here’s what happened.
In 2001, Illinois inmate Gregory Turley filed a federal lawsuit alleging that he had been a victim of unlawful retaliation by prison officials. The district court judge dismissed some claims for failure to state a claim, but other claims in the complaint withstood the initial screening, and Turley eventually won a jury verdict.
In 2002, Turley filed a second lawsuit alleging deliberate indifference by prison officials to his medical needs. Once again, some claims were screened out, but other claims were found legally adequate. Ultimately, Turley lost at the summary judgment stage for lack of sufficient evidence to support his surviving claims.
In 2003, Turley filed another retaliation lawsuit. In this case, some claims were dismissed for failure to state a claim, while others were later rejected at the summary judgement stage for failure to exhaust administrative remedies.
In 2009, Turley filed the present lawsuit, again alleging retaliation in connection with his earlier litigation. He asserts that he has endured a range of retaliatory actions, including physical assaults, threats, trumped-up disciplinary charges, confinement in segregation without a valid reason, interference with his access to the grievance system, and removal of his personal property.
The district judge denied his application to proceed IFP in light of the dismissal of claims from his earlier complaints. On appeal, however, the Seventh Circuit (per Judge Ripple) reversed.
The court relied on the plain language of § 1915(g):
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury (emphasis added).
As the court observed, the term “action” has a precise meaning to lawyers this is different than the meaning of ”claim” — a civil “action” may contain several discrete ”claims.” By the statute’s own terms, an inmate does not incur a strike unless an “action” is dismissed. In Turley’s 2001, 2002, and 2003 lawsuits, some claims were dismissed at the initial screening stage, but the action as a whole was permitted to proceed. The fact that Turley lost at the summary judgment stage in the latter two lawsuits does not mean the complaints were frivolous, and, the Seventh Circuit held, neither is properly treated as a strike. Of course, there would be something truly perverse about treating the 2001 lawsuit as a strike when Turley actually won a jury verdict in the action.
The analysis seems straightforward enough, and conforms to similar pronouncements by the Fifth, Sixth, Eighth, Ninth, and D.C. Circuits. However, it is inconsistent with prior statements by the Seventh Circuit in George v. Smith, 507 F.3d 605 (2007), and Boriboune v. Berge, 391 F.3d 852 (2004), both of which suggested that the § 1915(g) should be applied through a claim-by-claim analysis — the dismissal of a single claim, rather than an entire action, would amount to a strike.
Fortunately, the key statements in George and Boriboune were not central to the holdings of either case, permitting the court in Turley to discount them as dicta. The Seventh Circuit now joins its sister circuits in adopting the whole-action approach.
Another notable holding in Turley focuses on the 2003 lawsuit and the significance of Turley’s failure to exhaust administrative remedies. Specifically, the court made clear that the dismissal of a claim for failure to exhaust does not constitute a strike:
[A] dismissal for failure to plead adequately exhaustion is distinct from a dismissal for failure to state a claim, and neither the dismissal of a complaint in its entirety for failure to exhaust nor the dismissal of unexhausted claims from an action containing other viable claims constitutes a strike under § 1915(g). A prisoner’s failure to exhaust administrative remedies is statutorily distinct from his failure to state a claim upon which relief may be granted. The dismissal of an action for failure to exhaust therefore does not incur a strike. Thus, consistent with the plain language of the PLRA, we conclude that the dismissal of an action, in part for failure to exhaust and in part as frivolous, malicious or for failure to state a claim does not constitute a strike under § 1915(g).
Cross posted at Life Sentences Blog.