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Pro Se Tips and Tactics: Three-Strikes and No More

Partial Payment of Filing Fees

by Daniel E. Manville

Introduction1

When filing a pro se lawsuit you may seek a waiver of the payment of the entire filing fee. However, with the enactment of the Prison Litigation Reform Act (PLRA), courts are now authorized to deny such waiver if you have filed three or more prior lawsuits which have been dismissed based upon a finding that these lawsuits were either frivolous, malicious, or failed to state a claim. 2 If such a finding is made, you will not be allowed to file a lawsuit in forma pauperis but you can file it if you pay the entire filing fee when you submit the lawsuit to the court. This is commonly known as the three strikes" provision of the PLRA.

What is a Strike?

A strike is when a court has determined that your lawsuit or appeal is frivolous, malicious, or it failed to state a claim.
3 The court will count the dismissal of the complaint as a strike" if it meets one or more of these criteria. If you then appeal that dismissal and the appellate court finds that the dismissal was correctly based upon one of these criteria, you will then receive a second strike. 4
Courts are authorized to review your pleadings at any time during the processing of the case to determine if the action ... is frivolous or malicious ... fails to state a claim ... or ... a defendant ... is immune from such relief" requested by the prisoner. 5 These procedures apply to cases filed by prisoners regardless ... whether the plaintiff has paid the filing fee or is proceeding [IFP]." 6

When is a Lawsuit or Appeal Frivolous?

Since the PLRA does not define frivolous, courts will look to the ordinary, contemporary, common meaning" of the word in determining whether your lawsuit is frivolous. 7 In determining whether the lawsuit is frivolous, some courts will focus on whether the action is frivolous in the sense that it is (1) of little or no weight, value, or importance; (2) not worthy of serious consideration; or (3) trivial." 8 For example, claims that prisoners have a constitutional right to deodorant or steak dinners have been held legally frivolous. 9 Recently, the Fourth Circuit stated that [a] claim for de minimis damage constitutes a frivolous claim within the meaning of ... 28 U.S.C. § 1915(e)(2)(B)." 10 This holding is contrary to a line of United States Supreme Court cases which have recognized that First Amendment and procedural due process violations may only result in nominal damages. 11

When is A Lawsuit or Appeal Malicious?

In Andrews the court held that a lawsuit is malicious if it was filed with the intention or desire to harm another." 12 Some examples of malicious lawsuits are those that threaten violence or contain disrespectful references to the court; 13 those that repeat the same allegations from prior lawsuits; 14 or those where the prisoner offered to dismiss the lawsuit if prison officials would recommend to a state court to grant habeas corpus. 15 Your pleadings should not contain abusive or derogatory comments about the other parties or the courts because if it does, the court will likely dismiss it as being malicious and you will have a strike imposed against you.

When Does a Lawsuit Fail to State a Claim?

Courts are permitted to summarily dismiss a complaint 16 for failure to state a claim upon which relief may be granted" (i.e., if the facts alleged in your complaint do not establish a violation of law). 17 For example, if the lawsuit alleges that you were not given due process prior to being placed in segregation, on these facts only, the court will find that you failed to state a claim since you have no due process right prior to placement in segregation. This will court as a strike. 18 Further, most courts will count as a strike a complaint that is dismissed for failure to exhaust the prison administrative grievance process. 19

What is Not a Strike?

Courts have held that habeas corpus actions do not count as strikes under the three-strike provision. 20 However, a habeas petition which is more appropriately construed as a § 1983 action is countable as a strike. 21 A court should dismiss without prejudice a § 1983 claim that has been improperly filed under the habeas statute. 22

The three strikes" provision only applies to lawsuits filed while you were in custody as a result of a conviction or detained for an alleged criminal law violation. 23 This means that if you filed a lawsuit while a civil detainee, such as an INS detainee, and it was dismissed as being frivolous, malicious or failed to state a claim the dismissal would not count as a strike when filing as an inmate. 24

It has been held that an action dismissed entirely without prejudice is not a strike' for the purpose of § 1915(g)..." 25 The court went on to state that if any of the claims were found to have merit, the presence of frivolous claims would not by themselves draw the action into the circle traced by § 1915(g)." 26

When Should You File an Appeal?

Not every dismissal of a lawsuit by the district court should be appealed, especially those where the dismissal is based upon a failure to exhaust the grievance process. You must consider the ramifications that can result from appealing a frivolous, malicious or failure to state a claim dismissal. If the appellate court affirmed the dismissal, you will then have two strikes. Review the ruling of the district court and only appeal when you are quite certain you can prevail.

How is it Determined Whether You Have Three Strikes?

In determining whether you have filed three prior lawsuits to meet the three-strike" provision, courts are to count lawsuits and appeals filed prior to the PLRA effective date of April 26, 1996. 27 Some courts have held that a dismissal without prejudice counts as a strike, so long as the dismissal is made because the action is frivolous, malicious, or fails to state a claim. 28
Each time you file a lawsuit there is a requirement that you list all of your prior lawsuits and the results. A district court will then review these lawsuits to determine if you have three prior dismissals that meet the criteria of 28 U.S.C. § 1915(g). If you do meet the three strikes" provision, the district court will not file your lawsuit and will issue an order dismissing it, and will not allow you to pay the required filing fee.
Once the district court has determined that your lawsuit should be dismissed without prejudice since you meet the three strikes" provision, you cannot simply pay the filing fee after being denied in forma pauperis status. 29 You must refile the lawsuit and pay the filing fee at the time you reinitiate the suit.

Is there an Exception to the Three Strikes Provision?

Once it has been found that you meet the three-strikes" provision, a federal court lawsuit or appeal cannot be filed unless you pay the full filing fee at the time of submitting the lawsuit or appeal. 30 The only exception to the paying of the entire initial filing fee is if you are under imminent danger of serious physical injury. If you file the lawsuit after having obtained a third strike and it does not meet the imminent danger standard, a district court should dismiss the lawsuit without prejudice. 31
Courts have held that imminent physical injury must exist at the time the complaint or appeal is filed.32 In the complaint or appeal you must demonstrate how the conduct complained of threatens continuing or future injury and not just injuries received in the past. Courts have defined the phrase imminent danger" as encompassing those dangers likely to cause harm in the next week, month, or year.'" 33
One appellate court required the holding of an evidentiary hearing on the question of imminent physical danger" where the prisoner had made credible, uncontroverted allegations of physical threats and attacks. 34 Another court held that the standard of imminent danger of serious physical injury was satisfied when prison staff continuously placed a prisoner near his enemies despite two prior stabbings. 35 Whereas, another court stated that the standard was met when a prisoner alleged a serious medical need that resulted in five tooth extractions and a spreading mouth infection requiring two additional
extractions. 36 Courts have held that this standard is not limited to Eighth Amendment claims and does not require that the imminent danger allegation be accompanied by allegations of an existing serious physical injury; but the alleged conditions must pose an imminent (future) danger of serious physical injury. 37 Is the Three Strikes Provision Constitutional?

The three strikes" provision has survived numerous constitutional challenges, such as that it denied access to the court, due process, equal protection, and others.38

Endnotes

1. This article is authored by Daniel E. Manville. He is the author and publisher of the recently released Disciplinary Self-Help Litigation Manual and is currently working on a rewrite of the Prisoners' Self-Help Litigation Manual with John Boston which should be available in late 2006. Mr. Manville is presently an Adjunct Professor and Clinical Staff Attorney for Wayne State University Law School Civil Rights Clinic, Detroit, Michigan. Neither the Clinic or Staff Attorney Manville are able to handle lawsuits in other states.

2. 28 U.S.C. § 1915(g) states:

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.

3. Supra note 2.

4. See, e.g., Henderson v. Norris, 129 F.3d 481, 485 (8th Cir. 1997) (dispositions of both his complaint and his appeal are strikes" under §§ 1915(g)); Healy v. Wisconsin, 65 Fed.Appx. 567, 2003 WL 21054646 (7th Cir. 2003) (prisoner brought due process claim that was barred by precedent, and earned second strike for taking appeal from dismissal of that action).

5. 28 U.S.C. § 1915(e)(2); Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000).

6. See, e.g., Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998); McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997).

7. Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311 (1979). In Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005), the court relied on the Webster's Third New International Dictionary 913 (1993) in holding that a case is frivolous if it is of little weight or importance: having no basis in law or fact.' See also Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827 (1989).

8. See, e.g., Deutsch v. U.S., 67 F.3d 1080, 1087 (3rd Cir. 1995).

9. Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990).

10. Nagy v. FMC Butner, 376 F.3d 252, 2004 WL 1622219 **4 (4th Cir. 2004) ($25 in damages was sought for lost coat).

11. See, e.g., Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n. 11, 106 S.Ct. 2537 (1986) (holding nominal damages should be granted for section 1983 claims when actual injury cannot be shown); Carey v. Piphus, 435 U.S. 247, 267, 98 S.Ct. 1042 (1978) (holding nominal damage award of $1.00 required for procedural due process violation); see also Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003) (holding section 1997e(e) does not preclude nominal damages); Risdal v. Halford, 209 F.3d 1071, 1073 (8th Cir. 2000) (holding court must award nominal damages in the amount of $1.00 for First Amendment violations).

12. Andrews v. King, supra.

13. See Crisafi v. Holland, 655 F.2d 1305, 1309 (D.C. Cir. 1981) (per curiam) (complaint that threatens violence or that contains disrespectful references to the court" properly characterized as malicious); Spencer v. Rhodes, 656 F.Supp. 458, 464 (E.D. N.C.), aff'd, 826 F.2d 1061 (4th Cir. 1987) (complaint filed for purposes of vengeance and not to redress a legal wrong was malicious).

14. Ballentine v. Crawford, 563 F.Supp. 627, 629 (N.D. Ind. 1983) (complaint that repeated allegations of previous litigation was abusive and malicious). See also, Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (an IFP complaint that merely repeats pending or previously litigated claims may be considered abusive and dismissed under the authority of section 1915(d).); Horsey v. Asher, 741 F.2d 209, 213 (8th Cir. 1984) (a complaint may be dismissed under § 1915(d) if it is plainly part of a longstanding pattern of abusive and repetitious lawsuits.).

15. Hernandez v. Earney, 558 F.Supp. 1256, 1258 (W.D. Tex. 1983).

16. This means that the court can review your complaint before it is actually filed with the court to determine if it meets the criteria of § 1915A(b). If the court finds that your complaint meets one of the criteria contained in § 1915A(b), it will issue an order dismissing the lawsuit without service upon the defendant. See, e.g., Ford v. Johnson, 362 F.3d 395, 399 - 400 (7th Cir. 2004)

17. 28 U.S.C. § 1915(A). Most district courts have established pre-screening procedures for review of pro se complaint before they are even filed or served. Federal district courts are authorized to review prisoners' complaints before filing them, or as soon as practical after filing, to determine if any of the claims are frivolous, malicious, ... fails to state a claim .... [or the] defendant ... is immune from such relief" requested in the complaint. Id.

18. Sandin v. Connor, 515 U.S. 472, 487, 115 S.Ct. 2293 (1996) (liberty interest not to be confined in segregation exists only if such confinement imposes anatypical and significant hardship" on the prisoner).

19. See, e.g., Porter v. Fox, 99 F.3d 271, 274 (8th Cir. 1996); Henry v. Medical Dept. at SCI-Dallas, 153 F.Supp.2d 553, 556 (M.D. Pa. 2001) (citing to Porter with approval). But see Snider v. Melindez, 199 F.3d 108, 115 (2nd Cir. 1999) (opining, in dicta, without deciding, that the phrase, failure to state a claim," as used in the PLRA, does not include failure to exhaust administrative remedies absent a finding that the failure to exhaust permanently bars the suit); Clemons v. Young, 240 F.Supp.2d 639, 641 (E.D. Mich. 2003) (in dictum, dismissal for failure to exhaust should not be strike), citing to Snider v. Melindez, 199 F.3d at 111). See also Smith v. Duke, 296 F.Supp.2d 965, 966-68 (E.D. Ark. 2003).

20. See, e.g., Smith v. Angelone, 111 F.3d 1126, 1130 (4th Cir. 1997) (three-strike provision does not apply to habeas action); Blair-Bey v. Quick, 151 F.3d 1036, 1041 (D.C. Cir. 1998) (same).

21. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 779 & n. 2 (10th Cir. 1999); Ayers v. Norris, 43 F.Supp.2d 1039 (E.D. Ark. 1999).

22. See, e.g., Moran v. Sondalle, 218 F.3d 647, 651 (7th Cir. 2000). See also Cook v. Texas Dep't of Criminal Justice Transitional Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994) (noting distinction between claims that must initially be pressed by writ of habeas corpus and those that may be brought pursuant to § 1983); Serio v. Members of La. St. Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987) (holding that in instances in which a petition combines claims that should be asserted in habeas with claims that properly may be pursued as an initial matter under § 1983, and the claims can be separated, federal courts should do so, entertaining the § 1983 claims.).

23. Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000).

24. See LaFontant v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998) (INS detainee); Page v. Torrey, supra (post-expiration detainee is no longer a prisoner); Cf. Perkins v. Hedricks, 340 F.3d 582 (8th Cir. 2002 (person held on pure civil commitment is not a prisoner); Kolocotronis v. Reddy, 247 F.3d 726, 728 (8th Cir. 2001) (person held on civil commitment following verdict of not guilty by reason of insanity is not a prisoner).

25. Clemons v. Young, supra.

26. Id..

27. Courts have applied § 1915(g) retroactively by finding that it is a procedural rule. See Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997); Keener v. Pennsylvania Bd. of Probation & Parole, 128 F.3d 143, 144-5 (3rd Cir. 1997) (collecting cases); Adepegba v. Hammons, 103 F.3d 383, 385-6 (5th Cir. 1996).

28. See, e.g., Rivera v. Allin, 144 F.3d 719, 731 (11th Cir.), cert. dismissed, 524 U.S. 978 (1998); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998) (prisoner has not alleged, much less established, that he faced imminent danger of serious physical injury at the time that his notice of appeal was filed).

29. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).

30. Id.

31. See Shabazz v. Campbell, 12 Fed.Appx. 329, 330, 2001 WL 700827 (6th Cir. 2001) (unpublished) (stating that because a prisoner's complaint clearly satisfied the provisions of § 1915(g) at the moment of filing, the district court had no authority to consider the merits of the complaint); McGee v. Myers, 10 Fed.Appx. 528, 529, 2001 WL 569149 (9th Cir. 2001) (unpublished) (affirming a district court's denial of a prisoner's request for in forma pauperis status and dismissal of complaint without prejudice pursuant to § 1915(g)).

32. See Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Abdul-Akbar v. McKelvie, 239 F.3d 307, 317 (3rd Cir. 2001) (en banc) (collecting cases and overruling contrary prior Third Circuit authority); Bañños v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998) (prisoner with three strikes is entitled to proceed with his action or appeal only if he is in imminent danger at the time that he seeks to file his suit in district court or seeks to proceed with his appeal or files a motion to proceed IFP).

33. Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995) (quoting Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475 (1993)); Payne v. Collins, 986 F.Supp. 1036, 1052 (E.D. Tex. 1997) (observing this approach includes review of the actions taken to alleviate the threat).

34. Gibbs v. Roman, 116 F.3d 83 (3rd Cir. 1997) (en banc), overruled on other grounds, Abdul-Akbar v. McKelvie, supra.

35. Ashley v. Dilworth, supra, but see Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (forced to work outside in inclement weather twice in five month period does not create imminent serious physical injury).

36. See McApphin v. Toney, 281 F.3d 709, 710-1 (8th Cir. 2002).

37. See, e.g., Gibbs v. Cross, 160 F.3d 962, 967 (3rd Cir. 1998).

38. See Rivera v. Allin, supra at 732 (holding that § 1915(g) does not violate prisoner's right to access the courts, separation of powers, due process, or equal protection); Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999) (citing to Wilson v. Yaklich, 148 F.3d 596, 606 (6th Cir. 1998)) (§ 1915(g) does not violate ex post facto laws)).

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