Farewell, Attorney Nathan A. Fishbach

Nathan FishbachThe Milwaukee legal community lost one of its most distinguished members yesterday with the untimely passing of Nathan A. Fishbach.  Nathan served in the United States Attorney’s Office for thirteen years, rising to the positions of Deputy U.S. Attorney and Interim U.S. Attorney.  He then moved to private practice in 1993, spending the balance of his career as a highly respected civil and white-collar litigator with Whyte Hirschboeck Dudek.  Nathan specialized in complex white-collar cases with overlapping civil, criminal, and regulatory dimensions.  Over the years, I had several conversations with Nathan about his practice, and I always left deeply impressed by his combination of heart-felt empathy for his clients and hard-nosed savvy about litigation tactics.

Nathan will be missed not only by his clients and coworkers, but also by the wider Milwaukee legal community, where he was known as a great leader and builder.  He was, for instance, the founding president of the Eastern District of Wisconsin Bar Association.  Nathan loved to bring people together, and I think he was quite proud of all the things he did that helped to make the Milwaukee legal community more genuinely a “community.”  It is hard to imagine any more deserving winner of the Judge Myron L. Gordon Lifetime Achievement Award, which was bestowed on him by the EDWBA earlier this year.

Although Nathan was a graduate of Villanova Law School, we have long since claimed him as an honorary Marquette Lawyer.  

Continue ReadingFarewell, Attorney Nathan A. Fishbach

Dismissal for Failure to Prosecute Does Not Count as PLRA Strike, Seventh Circuit Rules

Choosing form over substance, the Seventh Circuit ruled earlier this week that dismissals of a prison inmate’s repeated “unintelligible” complaints do not count as strikes under the Prison Litigation Reform Act, even though the cases should have been dismissed with prejudice for failure to state a claim. Paul v. Marberry (No. 10-3670). The PLRA requires prepayment of all filing and docket fees by inmate-plaintiffs who have three strikes — a requirement that may effectively doom lawsuits by indigent inmates. The PLRA specifies that a strike should be assigned for each action brought by an inmate that was dismissed for failure to state a claim.

Paul filed a series of complaints, each of which was initially dismissed without prejudice under FRCP 8(a)(2) for failure to provide a “short plain statement of the claim showing that the pleader is entitled to relief.” In none of the cases did Paul take advantage of the opportunity to file a new complaint in compliance with the rule. The district court then dimissed each case for failure to prosecute. Paul finally obtained the assistance of a fellow inmate who had better drafting skills and managed to file a complaint that did state a claim. However, the district court dismissed the new complaint based on the PLRA three-strikes rule and Paul’s failure to prepay his fees.

On appeal, the Seventh Circuit indicated that the earlier cases should have been dismissed for failure to state a claim instead failure to prosecute (5). But, given that the dismissal orders nowhere used strike-triggering language, the court held that they should not be counted against Paul:

[W]e think the plaintiff was entitled to take the previous dismissals at face value, and since none of them was based on any of the grounds specified in section 1915(g), to infer that he was not incurring strikes by the repeated dismissals. The statute is explicit, and the case law confirms, . . . that classifying a dismissal as a strike depends on the grounds given for it; since most prisoners litigate their civil claims pro se, they should not be required to speculate on the grounds the judge could or even should have based the dismissal on. (7-8)

Cross posted at Life Sentences Blog.

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Happy Third Blogday!

Three years ago today, we launched the Marquette Law School Faculty Blog.  With 1,648 posts, 2,560 comments, and 379,000 site visits, we are still going strong.

Although blog posts tend to be ephemeral by their nature, some have a more timeless quality.  In case you missed them the first time around, here are a handful of posts from our first couple of months that are still well worth reading today:

David Papke on the classic 1L film The Paper Chase;

Bruce Boyden on work-life balance and legal practice;

Judi McMullen on fear of sex offenders;

Lisa Mazzie on laptops in the classroom; and

Jessica Slavin on the law professor who influenced her the most.

Continue ReadingHappy Third Blogday!