14-c-1 What Is a Strike?

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

14-C-1. What is a Strike?

The PLRA is very specific about which dismissals count as strikes: dismissals for failure to state a claim, frivolousness, or maliciousness. "Failure to state a claim" means that even if all facts in your complaint are true, they still do not show a violation of law that the court could remedy or fix.⁷⁵ A legally "frivolous" suit is one that fails to raise an question of law,⁷⁶ a suit based on a baseless legal theory,⁷⁷ or one in which the complaint identifies a perfect defense, like the statute of limitations or the immunity doctrines.⁷⁸ A suit can also be factually frivolous if it alleges "fantastic or delusional scenarios."⁷⁹ A malicious suit is one filed for an improper purpose or one that is an abuse of the legal system.⁸⁰

A case dismissed on grounds other than frivolousness, maliciousness, or failure to state a claim is not a strike.⁸¹ Dismissals on grounds such as lack of prosecution,⁸² lack of jurisdiction,⁸³ or expiration of the statute of limitations⁸⁴ are not automatically strikes. They might be strikes if the court finds that the suit was frivolous or malicious.

A case that is dismissed on summary judgment-partly based on the absence of material issues of fact- is generally not a strike.⁸⁵ It is important to know that government lawyers often improperly file motions to dismiss claims that raise disputed facts and call them "motions to dismiss for failure to state a claim." However, the court should treat them as summary judgment motions.⁸⁶ If this happens to you, it is very important that you tell the court that your claim raises a disputed factual issue. That way, even if you lose, you will lose by summary judgment, and it will not count as a strike. If, however, your suit is dismissed for failure to state a claim, you will get a strike.

The failure to exhaust administrative remedies is not a failure to state a claim unless it is clear from the complaint that the suit is invalid.⁸⁷ This means that if your suit is dismissed for non-exhaustion it should generally not be a strike.⁸⁸ Most courts have held a partial dismissal-an order throwing out some claims or some defendants, but letting the rest of the case go forward-is not a strike.⁸⁹ A case is also not a strike if some claims are dismissed on grounds specified in Section 1915(g) (failure to state a claim, frivolousness, or maliciousness) but other claims are dismissed on other grounds.⁹⁰ However, one court held that a prisoner can be charged a strike even when some claims are dismissed on non "three strikes grounds" if he has joined many mostly frivolous complaints.⁹¹ Other courts have held that a dismissal can be a strike if part of the case is dismissed on "three strikes grounds," and the rest of it is dismissed for failure to exhaust administrative remedies.⁹²

A case that you voluntarily withdraw is not a strike.⁹³ An action that was never accepted for filing cannot be a strike.⁹⁴ Only federal court dismissals count as strikes, since a state court is not a "court of the United States" under the statute.⁹⁵ At least one court has called a case a strike if the plaintiff originally filed it in state court and the defendants removed the case to federal court.⁹⁶ It could be argued that this appears to be wrong, since & 1915(g) applies to those who on three occasions brought suit or filed an appeal "in a court of the United States" that was dismissed as frivolous, malicious, or failing to state a claim.

A motion filed in an existing case is not a strike.⁹⁷ A dismissal without prejudice is a strike if it is on the grounds stated in the three strikes provision.⁹⁸ A dismissal without prejudice under Rule 8, meaning the complaint was not understandable, is not a strike.⁹⁹ If the case is re-filed (for example, with an amended complaint designed to correct the problems that led to dismissal) and is then dismissed again, you will receive a second strike.¹⁰⁰

A dismissal is not a strike if there is no explanation for what caused the dismissal.¹⁰¹ Some courts have held that prisoners should not be given a strike based on law that was unclear or that changed after they filed.¹⁰² Dismissals may be strikes even if they were not IFP cases.¹⁰³ Courts have counted cases filed or dismissed before the enactment of the PLRA as strikes.¹⁰⁴ A dismissal in a habeas corpus action is not a strike.¹⁰⁵ Courts disagree over whether actions dismissed because they were mistakenly filed as civil rights actions under 42 U.S.C. & 1983 but should have been filed as habeas petitions, count as strikes.¹⁰⁶ Similarly, if you have a case that should fall under Section 1983 but file it as a habeas petition to avoid a strike, courts may count it as a strike.¹⁰⁷ Courts have sometimes treated such incorrectly filed habeas petitions as Section 1983 cases and gone forward with them.¹⁰⁸ One court has warned that this should not be done automatically.¹⁰⁹ That same court has stated that since prisoners could be charged with a strike, they should have a chance to think it over before continuing.¹¹⁰ In a class action, only named plaintiffs are subject to the three strikes provision.¹¹¹

If an ex-prisoner files a case and later returns to prison, one court has held that a dismissal counts as a strike.¹¹² However, this holding seems contrary to the statute's language. The statute refers only to previous actions brought "while incarcerated or detained" as claims which can result in a strike.¹¹³

Appeals count as strikes under Section 1915(g) only if they are "dismissed . . . [as] frivolous, malicious, or fail[ing] to state a claim upon which relief may be granted."¹¹⁴ It is usually not enough for an appeals court to simply affirm a district court decision that dismissed under Section 1915(g).¹¹⁵ The appeals court itself must dismiss under Section 1915(g). An appeal dismissed on grounds beyond Section 1915(g) does not count as an additional strike. Even if the district court decision that you appealed counts as a strike, if the appeals court dimisses the appeal on any grounds other than Section 1915(g), the appeals court decision will not count as a strike.¹¹⁶

Most courts have held that "[a] dismissal should not count against a petitioner until he has exhausted or waived his appeals."¹¹⁷ For example, suppose you receive a third strike in a district court decision. The three strikes provision will not prevent you from appealing that decision IFP.¹¹⁸ If an appeals court finds that your claim was not frivolous, it will remove the strike.¹¹⁹

The defendants have the burden of providing evidence to show that you have three strikes. If they do, the burden shifts to you to show that you do not have three strikes.¹²⁰ Defendants do not meet their burden just by showing dismissals. They must also show that the reason for each dismissal was a failure to state a claim, frivolousness, or maliciousness.¹²¹ When applying the three strikes rule, a court must identify each ground it relied on.¹²²

The three strikes rule cannot remove IFP status in a case filed before you had three strikes. The statute is a limit on your ability to "bring" suit, not on your ability to maintain or continue suits already brought.¹²³ A case is "brought" when you submit the complaint to the court.¹²⁴ The three strikes provision also does not stop you from amending your complaint in a suit filed before you had three strikes.¹²⁵

(a) The "Imminent Danger of Serious Physical Injury" Exception

The three strikes provision does not keep you from proceeding IFP if you are in "imminent danger of serious physical injury."¹²⁶ "Imminent" means you must be in danger at the time you file the suit or when you make an IFP application in the district court or on appeal.¹²⁷

All credible, or believable, claims of imminent danger of serious physical injury must meet the statutory requirement.¹²⁸ However, the court will dismiss claims if they are not supported by evidence or are not serious enough.¹²⁹ If claims are disputed, the court may hold a hearing or review depositions and affidavits to determine whether you are in enough danger to meet the requirement.¹³⁰ Some courts, however, may make ad hoc ("ad hoc" means "unique to your particular case") judgments about your credibility based on no more than the pro se complaint's allegations.¹³¹ The more specific you can be about the danger you are in, the more likely you are to qualify for the exception. The risk of future injury can be enough to invoke the imminent danger exception.¹³² One court held the "imminent danger" requirement was satisfied by allegations (claims) that prison staff refused protective custody to a prisoner targeted by gangs.¹³³ Another court found imminent danger when a prisoner faced threats and assaults after his history as an informant was revealed.¹³⁴ Repeatedly placing a prisoner near known enemies can also satisfy the requirement.¹³⁵ Other courts have found imminent danger when a prisoner was denied treatment for an ongoing serious medical problem¹³⁶ or disability.¹³⁷ Placing a prisoner in an environment that causes or worsens medical problems can also create imminent danger.¹³⁸

If your claim meets the imminent danger standard, you can file the entire complaint, even if portions of it are not related to the specific allegations and defendants currently responsible for the danger.¹³⁹ However, the danger you...