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No “Strike” Under PLRA When Some Claims are Heard on the Merits

A prisoner does not incur a “strike” under the Prison Litigation Reform Act (PLRA) unless his or her suit is dismissed entirely as frivolous, malicious or for failure to state a claim, the U.S. Court of Appeals for the Seventh Circuit held on November 2, 2010. On remand, the district court denied the defendants’ motion for summary judgment, crediting the plaintiff’s testimony that he had tried to exhaust the prison’s grievance process.

The PLRA prohibits prisoners from proceeding in forma pauperis (IFP) if they have “brought” three or more actions or appeals that were dismissed by a court as frivolous, malicious or for failure to state a claim. 28 U.S.C. § 1915(g). The only exception to this three-strikes denial of IFP status is if the prisoner can show that he or she is in “imminent danger of physical injury.”

Gregory J. Turley, an Illinois state prisoner housed at the Menard Correctional Center, sued various Illinois prison officials alleging retaliation for grievances that he had filed. The district court denied Turley’s request for IFP status on the basis that he had accumulated at least three “strikes” under the PLRA.

The court based this conclusion on three lawsuits that Turley had filed previously, each of which included some claims that were dismissed for failure to state a claim or for failure to exhaust administrative remedies. In one of the suits, though, Turley settled his claims that were not dismissed. In another case he lost on summary judgment. In the third lawsuit, the court granted summary judgment to the defendants after holding that Turley had failed to exhaust his administrative remedies under the PLRA.

Turley appealed the district court’s denial of IFP status in his grievance retaliation case, arguing that he had not “brought” three or more suits or appeals that were dismissed as frivolous, malicious or for failure to state a claim. The Seventh Circuit agreed.

“Section 1915(g) literally speaks in terms of prior actions that were dismissed as frivolous, malicious, or for failure to state a claim,” the appellate court wrote. “The statute does not employ the term ‘claim’ to describe the type of dismissal that will incur a strike.”

Consequently, the Court of Appeals found that a PLRA “strike” is only “incurred for an action dismissed in its entirety on one or more of the three enumerated grounds” in § 1915(g). In so holding, the Seventh Circuit joined the Fifth, Sixth, Eighth and D.C. Circuits, which had reached similar decisions.

The appellate court also held that because “failure to exhaust administrative remedies is statutorily distinct from [dis-missal for] failure to state a claim,” a “dismissal for failure to exhaust [] does not incur a strike.”

The judgment of the district court denying Turley’s motion for IFP status was accordingly reversed, and the case remanded for further proceedings. See: Turley v. Gaetz, 625 F.3d 1005 (7th Cir. 2010).

Following remand, on February 11, 2011 the district court considered Turley’s IFP motion and found he had alleged a facially valid retaliation claim, noting that “Prison officials may not retaliate against inmates for filing grievances or otherwise complaining about their conditions of confinement.” Claims against several of the defendants were dismissed, however, and the court declined to grant a temporary restraining order or preliminary injunction. See: Turley v. Gaetz, 2011 WL 615342.

The defendants filed a motion for summary judgment, alleging that Turley had failed to exhaust administrative remedies as required by the PLRA. The district court held a hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), then issued a ruling on March 23, 2012 denying the defendants’ summary judgment motion. The court found that Turley’s testimony – that he had filed grievances but never received a response from prison officials – was reliable and “backed by the evidence in the record.”

The district court held that Turley was “not required to further exhaust his remedies when he failed to receive a response from Defendants,” citing Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2000) and Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) [PLN, July 2007, p.39], and found that grievance record-keeping at Menard was “inaccurate and unreliable.” However, as there was no evidence that Turley had filed a grievance related to his claim that the defendants retaliated against him by denying him prison job assignments, that claim was dismissed.

Turley’s lawsuit remains pending on the defendants’ second motion for summary judgment, which was filed on April 23, 2012. He is litigating the case pro se. See: Turley v. Gaetz, U.S.D.C. (S.D. Ill.), Case No. 3:09-cv-00829-SCW.

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Turley v. Gaetz

Turley v. Gaetz

Turley v. Gaetz