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Third Circuit Joins Fifth, Tenth and D.C. Circuits in Holding Heck Favorable-Termination Dismissals Are PLRA Strikes

by Mark Wilson

On October 29, 2021, the U.S. Court of Appeals for the Third Circuit handed a New Jersey prisoner a legal defeat. But in the process, it joined the Fifth, Tenth, and D.C. Circuits in holding that a dismissal for failure to meet the “favorable-termination” requirement laid out in Heck v. Humphrey, 512 U.S. 477 (1994), counts as a strike for failure to state a claim under the Prison Litigation Reform Act of 1996 (PLRA), 42 U.S.C. § 1997e.

What the high court laid out in Heck was this: If a prisoner’s claims were later to be found successful, and that “favorable termination” would call into question the validity of his conviction, he must first challenge his conviction with a habeas corpus claim under 28 U.S.C. § 2241. Otherwise, he may proceed with a civil-rights claim under 42 U.S.C. § 1983. [See: PLN, Sep. 1994, p.12.]

Since 2012, New Jersey prisoner Allen Dupree Garrett has brought at least ten unsuccessful federal suits against prison officials, state officials and the federal government. As an indigent prisoner proceeding in forma pauperis, Garrett was able to avoid paying filing fees for these lawsuits.

Most recently, in April 2020, Garrett filed suit pro se under 42 U.S.C. § 1983 against Gov. Phil Murphy (D) and state prison officials in federal court for the District of New Jersey, seeking immediate release and $100 million in damages for deliberate indifference to his risk of contracting COVID-19, as well as alleging a violation of his right to a “speedy trial” at which his appeal of his conviction and sentence could be heard.

On initial screening, the district court dismissed Garrett’s COVID-19 claim, finding that it was “a string of non-sequiturs and case citations, and there are no facts to support any claim.” It also dismissed the “speedy trial” claim, concluding that it was properly raised only “in a habeas corpus action” under 28 U.S.C. § 2241. See: Garrett v. Murphy, 2020 U.S. Dist. LEXIS 171238 (D.N.J.).

Garrett appealed, seeking leave to proceed in forma pauperis yet again. But the Third Circuit barred him, invoking PLRA’s three-strike rule. Garrett responded that he had not struck out and even if he had, he was under imminent danger of serious physical harm from the disease.

The Court appointed the Georgetown Law Appellate Court Immersion Clinic as Amicus Curiae to brief the issues, primary of which was the status of Garrett’s previous dismissals under Heck. Did his claim implicate the validity of his conviction, meaning he was attempting an “end-run” around the Heck requirement by simply asking for damages and not his release?

In answer, Amicus argued that: (1) Heck dismissals are for lack-of-subject-matter jurisdiction, rather than for failure to state a claim under PLRA; (2) Heck’s favorable-termination requirement is an affirmative defense that may be waived by a defendant, not an element of a claim; (3) none of Garrett’s Heck dismissals constitutes a strike because each was a “mixed” dismissal (in which the court declined to exercise jurisdiction over state-law claims based on the same facts); and (4) Garrett’s second dismissal did not count as a strike because the order, as opposed to the opinion, did not explicitly say the action was dismissed on a strike-counting ground.

Though it found that “Amicus has ably discharged its responsibilities,” the Court proceeded to reject each of these arguments.

“We now join the Fifth, Tenth, and D.C. Circuits in holding that the dismissal of an action for failure to meet Heck’s favorable-termination requirement counts as a PLRA strike for failure to state a claim,” the Court declared. “Any other rule is incompatible with Heck.”

So because “Garrett has three prior suits dismissed for failure to meet Heck’s ‘favorable termination’ requirement,” the Court said therefore that “Garrett has struck out.”

The Court also rejected his claim of “imminent danger of physical injury” as required to proceed in forma pauperis, despite having three strikes, under 28 U.S.C. § 1915(g). Medical records showed Garrett had already contracted and survived COVID-19 in December 2020.The Court said that, “protected by natural immunity, Garrett has not shown that continued exposure to COVID-19 still puts him at imminent risk of serious physical injury.” Additionally, the Court reminded him that “effective COVID-19 vaccines are widely available.”

Accordingly, Garrett’s motion to proceed in forma pauperis was denied, and the Court concluded that “to press his appeal, Garrett must first pay the filing fee” within 14 days. See: Garrett v. Murphy, 17 F.4th 419 (3d Cir. 2021).

He did so, after which the Court proceeded to affirm the district court’s dismissal of his case on February 2, 2022. See: Garrett v. Murphy, 2022 U.S. App. LEXIS 2974 (3d Cir.). 

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Related legal cases

Garrett v. Murphy

Garrett v. Murphy

Garrett v. Murphy