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

Post author:Michael M. O'Hear
Post published:September 8, 2011
Post category:Federal Civil Litigation Prisoner Rights Public Seventh Circuit

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.

You Are Not Leaving on a Jet Plane–Not Dressed Like That

Post author:Michael D. Rust
Post published:September 6, 2011
Post category:Business Regulation Public

On September 1, Green Day’s frontman Billie Joe Armstrong was removed from a Southwest Airlines flight because his pants were too saggy. Two months ago a football player from the University of New Mexico was also removed from a flight, this time by US Airways. With these events taking place in relatively rapid succession, the blogosphere lit up with complaints about the airlines. There are even online petitions and calls for both men to sue their respective airlines.

I view this no differently than the signs I saw as a kid walking into restaurants: “No Shirt, No Shoes, No Service.” A private company has a right to enforce a dress code on patrons.

Those calling for a lawsuit may have their trigger fingers a bit too itchy. This was by no means a restriction based on race, ethnicity, gender, etc. This was a company seeking to enforce a public dress code.

Perhaps this is a potential market opening for any of you with millions just looking for something to do with it – open an airline that allows passengers to wear their pants sagging.

Finding the Positive Amid a Family’s Searing 9/11 Tragedy

Post author:Alan J. Borsuk
Post published:September 6, 2011
Post category:Marquette Law School Public Speakers at Marquette

It was several years before Andrea Haberman’s purse was returned to her family. It took a few more years before her father, Gordon, was willing to go through what was in the purse inside an evidence bag he was given by the New York City police department. He described his reaction to the purse as “very visceral.”

On the other hand, for weeks after Sept. 11, 2001, Haberman kept calling his daughter’s cell phone number. No one answered. “You’re asking me why I would call that,” Haberman said to Mike Gousha during an intense, somber “On the Issues” program in Eckstein Hall’s Appellate Courtroom on Tuesday. “It was a connection to her.”

As the tenth anniversary of the death of Andrea Haberman and nearly 3,000 other people in the attacks of Sept. 11 arrives, Andrea’s family and friends remain deeply committed to keeping alive their connection to the 25-year-old daughter, sister, fiancé, and friend who was just hours into her first trip to New York.