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Eighth Circuit Says Judge Dismissing Claim of Federal Prisoner in Arkansas Was Premature in Counting It a PLRA ‘Strike’

by Matt Clarke

On January 12, 2022, the U.S. Court of Appeals for the Eighth Circuit said a lower court erred in declaring that a federal prisoner’s dismissed lawsuit counted as the first of three “strikes” allowed under 28 U.S.C. § 1915(g). Why? Because only the judge who counts the fourth “strike” gets to count the first three, too. Yet that was all the Court could do for the plaintiff since it lacked jurisdiction, so it dismissed his appeal.

The prisoner, Gabriel Gonzalez, was incarcerated in the Forrest City Federal Correctional Institution when he filed his pro se complaint in federal court for the Eastern District of Arkansas in December 2019. As that court recalled, “Gonzalez alleges that certain personal property, including legal papers and materials, were confiscated and disposed of in November 2018 by the prison’s property search team … as a means of mass … punishment in response to the actions of other inmates.”

Gonzalez specified he was suing under the Federal Tort Claims Act and not alleging a civil rights violation under 42 U.S.C. § 1983. Quoting Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008), a magistrate judge advised the district court that there is no exception to the federal government’s sovereign immunity under 28 U.S.C. § 2680(c) for claims “arising in respect of [the] detention” of property, so the suit should be dismissed.

But that wasn’t all. As the Eighth Circuit later recalled, “Gonzalez received more than he bargained for” when the magistrate judge also recommended counting the dismissal as one of the prisoner’s three strikes under § 1915(g).  See: Gonzalez v. United States, 2020 U.S. Dist. LEXIS 129089 (E.D. Ark.).

As amended by the Prison Litigation Reform Act of 1996 (PLRA), 42 U.S.C. § 1997e, the text of § 1915(g) counts a strike for every federal suit a prisoner files that is then dismissed because it is frivolous, malicious, or fails to state a claim upon which relief may be granted. After three strikes, the prisoner may not claim a poverty exemption to the fees required to file another federal lawsuit, except in certain limited circumstances.

The district court adopted the magistrate’s recommendations. It also refused to let Gonzalez amend his complaint to state a civil rights claim against the government under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); as the court explained, there is no due process violation for being deprived of property if there remains “a meaningful post-deprivation remedy,” and BOP’s “Administrative Remedy Process fits that bill.” See: Gonzalez v. United States, 2020 U.S. Dist. LEXIS 127759 (E.D. Ark.).

Gonzalez didn’t question that, but he did appeal the strike, arguing it was prematurely called. Under § 1915(g), he maintained, the strike can be called only in the future after he files another lawsuit without prepayment of fees and after having two other lawsuits dismissed under conditions that make them strikes.

The Eighth Circuit agreed that “only the ‘fourth or later’ judge can determine whether a prisoner is trying to ‘bring a civil action’ after having already done so on ‘three or more prior occasions,’” quoting Simmons v. Washington, 996 F.3d 350 (6th Cir. 2021), in which § 1915(g) itself was quoted. Therefore, the Court said, Gonzalez is free to argue with a future judge that this dismissal should not count as a strike, regardless of what the district court said.

After making that determination, the Court turned to the issue of jurisdiction. Because the third strike had not yet been called, “Gonzalez faces no ‘certainly impending injury’” as required for a federal court of appeals to have jurisdiction. “In short, whether the called strike was correct is not fit for judicial decision because any hardship is ‘contingent [on] future events’ that may never ‘occur,’” the Court said, quoting Texas v. United States, 523 U.S. 296, 300 (1998).

“So what does all of this mean for Gonzalez?” the Court continued. “At most, he has received a warning.” In determining that his complaint failed to state a claim, the district court may have “said too much” in calling the resulting dismissal a “strike.” But that was merely “an ‘unnecessary’ and non-binding comment — a statement of dicta, in other words — something that courts do from time to time,” the Court concluded, and not anything prohibited by Article III.

However, there was a court lacking jurisdiction, the Court said: The court of appeals. Thus, due to a lack of live controversy, it dismissed Gonzalez’s appeal.

In his dissent, Judge Raymond W. Gruender allowed that the Court’s majority “ably explains why the question whether the dismissal of Gonzalez’s complaint counts as a strike … is unripe for adjudication” and why therefore “we lack subject-matter jurisdiction to decide the question.” But this “also means that the district court lacked subject-matter jurisdiction,” so he would vacate that part of its order. See: Gonzalez v. United States, 23 F.4th 788 (8th Cir. 2022). 

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Related legal cases

Gonzalez v. United States

Gonzalez v. United States

Gonzalez v. United States