Michael H. Haury v. Bruce Lemon, et al
Filing
Filed opinion of the court PER CURIAM. We REVERSE the district court's finding and REMAND the case for the district court to reconsider whether Haury may proceed as a pauper. Haury's request to proceed in forma pauperis on appeal is GRANTED. John L. Coffey, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and David F. Hamilton, Circuit Judge. [6322191-2] [6332433-3] [6332433] [11-2148]--[Edited 08/26/2011 by ER to reflect that Haury's request to proceed ifp on appeal is GRANTED]
Case: 11-2148
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In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2148
M ICHAEL H UNTER H AURY,
Plaintiff-Appellant,
v.
B RUCE L EMMON, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:11-CV-145 RLM—Robert L. Miller, Jr., Judge.
S UBMITTED A UGUST 15, 2011—D ECIDED A UGUST 25, 2011
Before C OFFEY, R OVNER, and H AMILTON, Circuit Judges.
P ER C URIAM. Michael Haury, a prisoner in Indiana,
filed a pro se lawsuit under 42 U.S.C. § 1983 against
prison personnel and other defendants, alleging that
they violated his civil rights by interfering with the delivery of his legal mail and failing to provide a sufficient law library. The district court denied his request
to proceed as a pauper on the ground that he had accumulated three strikes for the dismissal of three prior
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lawsuits, see 28 U.S.C. § 1915(g), and Haury appeals
that decision. See Roberts v. United States Dist. Court for
Northern Dist. of California, 339 U.S. 844, 845 (1950); Turley
v. Gaetz, 625 F.3d 1005, 1008 n.3 (7th Cir. 2010). He also
moves for leave to proceed as a pauper in this court. We
conclude that only two of the cases named by the
district court warrant strikes under § 1915(g), and accordingly grant Haury’s motion, reverse the district court’s
decision, and remand for further proceedings.
The Prison Litigation Reform Act of 1995 (PLRA), Pub. L.
104-134, Title VIII, 110 Stat. 1321 (1996), precludes an
inmate from bringing a civil action or appealing a civil
judgment in forma pauperis if at least three of the
inmate’s prior lawsuits have been dismissed as
frivolous, malicious, or for failing to state a claim on
which relief may be granted. 28 U.S.C. § 1915(g). An
exception exists when a prisoner is in danger of serious
injury, see id., though it does not apply here. We consider de novo the district court’s application of the PLRA’s
three-strikes provision. Turley, 625 F.3d at 1008.
Of the three strikes imposed by the district court,
only the third is problematic. The district court described
the ground for dismissal in that 1991 case, Haury v. Rose
Brothers Trucking, Inc., No. EV 91-128-C (S.D. Ind. March 5,
1993), as being “frivolous for want of jurisdiction.” That
is not, however, entirely accurate. Instead, in 1993 the
district court dismissed a portion of Haury’s complaint
for failing to state a claim, and it dismissed the remaining two claims for lack of jurisdiction. That court
did not go so far as to characterize Haury’s claims as
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frivolous. We have never held in a published opinion
that dismissal for lack of jurisdiction warrants a strike
under 28 U.S.C. § 1915(g), though we have upheld a
strike in an unpublished order where a district court
dismissed a frivolous lawsuit, at least where the assertion of jurisdiction was itself also frivolous. See De La Garza
v. De La Garza, 91 F. App’x 508, 509 (7th Cir. Feb. 19,
2004) (“Although dismissal for want of jurisdiction is
not a ground specifically enumerated in § 1915(g), a
strike is nevertheless permissible when the assertion
of jurisdiction is frivolous.”). Dismissal for failure to
state a claim is an enumerated ground for acquiring a
strike, but the statute does not mention dismissal for
lack of jurisdiction.
Several other circuits have held that a dismissal for
lack of jurisdiction does not warrant imposing a strike,
at least where the assertion of jurisdiction was not found
to be frivolous. In Thompson v. Drug Enforcement Admin.,
492 F.3d 428, 437 (D.C. Cir. 2007), the D.C. Circuit concluded that the plain language of § 1915(g) allows courts
to impose a strike only for a dismissal based on one of
the grounds enumerated in the statute—a conclusion
we also reached in Turley, 625 F.3d at 1008-09. Because
that list does not include dismissals for lack of jurisdiction, such a dismissal could not count as a strike.
Thompson, 492 F.3d at 437. The court concluded “there
is nothing necessarily frivolous or malicious in bringing
an action for which the court lacks jurisdiction.” Id. The
court explained that “a dismissal for lack of jurisdiction
is not the same as a dismissal for failure to state a claim:
in enacting section 1915(g), Congress chose to mirror
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the language of Federal Rule of Civil Procedure 12(b)(6),
not 12(b)(1).” Thompson, 492 F.3d at 437. The Ninth
and Second Circuits have reached the same conclusion.
In Andrews v. King, 398 F.3d 1113 (9th Cir. 2005), the
Ninth Circuit also hewed closely to the plain language
of § 1915, concluding that dismissal of an appeal for lack
of jurisdiction could not count as a strike because that
basis for dismissal was not listed in § 1915(g). 398 F.3d
at 1120-21. And in Tafari v. Hues, 473 F.3d 440 (2d Cir.
2007), the Second Circuit similarly held that a dismissal
on appeal due to a jurisdictional defect (it was filed
prematurely) did not warrant a strike under § 1915(g).
A determination that a case cannot proceed in a particular forum or at a particular time is not a determination that the case is frivolous. 473 F.3d at 443.
The reasoning of these circuits is persuasive. We agree
that a dismissal for lack of jurisdiction does not warrant
a strike under 28 U.S.C. § 1915(g), at least when the assertion of jurisdiction is not itself found to be frivolous.
The district court in Haury v. Rose Brothers Trucking, Inc.
wrote that it lacked jurisdiction over two of Haury’s
claims. It is of course possible that the judge also considered that suit frivolous, but he did not say so at the
time. He could not have known that the PLRA (enacted
three years later in 1996) would make the precise
ground of his decision important in another suit so
many years later. Where the judge did not make such
findings, we cannot read into his decision a ground
for dismissal that he did not state, and which would
also substantially limit Haury’s ability to file a lawsuit.
Because the district court in 1993 did not dismiss the
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entirety of Haury’s earlier case for one of the three bases
listed in § 1915(g), the district court erred in imposing
a strike in this case in 2011. See Turley, 625 F.3d at 100809; Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir. 2011)
(“§ 1915(g) requires that a prisoner’s entire ‘action or
appeal’ be dismissed on enumerated grounds in order
to count as a strike”); Thompson, 492 F.3d at 432.
Accordingly, Haury has only two strikes, not three,
and he remains eligible for pauper status if he qualifies
otherwise. It remains to be seen whether there is a
viable claim here, and even whether this case might earn
Haury his third strike. But at least for now, the in forma
pauperis gate remains open to him. Haury’s request to
proceed in forma pauperis on appeal is G RANTED .
We R EVERSE the district court’s finding and R EMAND
the case for the district court to reconsider whether
Haury may proceed as a pauper.
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