Fiorito v. Prodigal Company, The

Filing 7

ORDER denying 6 Application to Proceed In Forma Pauperis on Appeal. (Written Opinion) Signed by Chief Judge Patrick J. Schiltz on 1/3/2025. (CLG)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MICHAEL FIORITO, individually and on
behalf of all others similarly situated,

Case No. 24?CV?3757 (PJS/TNL)

Plaintiff,
ORDER
v.
THE PRODIGAL COMPANY,
Defendant.

This matter is before the Court on the application to proceed in forma pauperis
(“IFP”) of plaintiff Michael Fiorito. See ECF No. 6. Because Fiorito is ineligible to
proceed IFP, the application is denied.
Under 28 U.S.C. § 1915(g),
[i]n no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if
the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on
the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner
is under imminent danger of serious physical injury.
The term “prisoner,” for purposes of § 1915(g), is defined as “any person incarcerated or
detained in any facility who is accused of, convicted of, sentenced for, or adjudicated

delinquent for, violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h).
Fiorito is not currently in prison, but he is a prisoner for purposes of § 1915(g).
Fiorito was found guilty at trial on one count of conspiracy to commit mail fraud and
six counts of mail fraud and was sentenced in 2010 to a 270?month term of
imprisonment. See United States v. Fiorito, No. 07?CR?0212 (PJS/JSM) (D. Minn.). That
sentence has not yet expired, as Fiorito himself recognizes, and he remains in the
custody of the Federal Bureau of Prisons (“BOP”). See Fiorito v. Metropolitan Council,
No. 24?CV?4562 (DSD/DLM), ECF No. 2 at 5 (D. Minn. Dec. 20, 2024) (IFP application of
Fiorito in unrelated lawsuit in which he states that “I am STILL an inmate”).
Fiorito is, however, nearing the end of his sentence, and the BOP has placed
Fiorito in “prerelease custody”—that is, community placement away from a prison—for
the final months of that sentence. See 18 U.S.C. § 3624(c)(1) (providing that the BOP
“shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment
spends a portion of the final months of that term . . . under conditions that will afford
that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that
prisoner into the community.”). Prerelease custody is a less restrictive form of
detention than prison, but it is nevertheless a form of detention, and that detention
results from Fiorito having been “sentenced for . . . violations of criminal law.” 28
U.S.C. § 1915(h). Fiorito therefore remains a prisoner. See also Jackson v. Johnson, 475
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F.3d 261, 267 (5th Cir. 2007) (explaining that a litigant confined at a halfway house for
the remainder of a sentence remains “a ‘prisoner’ within § 1915(h)’s definition because
his confinement is as a result of his criminal violation”); Neito v. Durbin, No. 21?50934,
2022 WL 1102476, at *2 (5th Cir. Apr. 13, 2022) (informing federal prisoner that “the
dismissal of his complaint as frivolous by the district court counts as a strike for
purposes of § 1915(g) because he was incarcerated in a halfway house when he filed his
complaint”); Dietz v. Fink, No. 4:23?CV?4158 (ECS), 2024 WL 5135689, at *1 n.4 (D.S.D.
Dec. 17, 2024); Cartman v. Unknown U.S. Marshals, No. 1:20?CV?5013, 2020 WL 13851412,
at *1 (N.D. Ga. Dec. 16, 2020); Wilson v. U.S. Att’y Gen. Off., No. 1:09?CV?13394, 2009 WL
3872144, at *1 (E.D. Mich. Nov. 17, 2009).
The remaining question, then, is whether Fiorito “has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or appeal in
a court of the United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C.
§ 1915(g). Fiorito has brought dozens of lawsuits as a prisoner, and few (if any) of those
lawsuits have been successful. Not all dismissals, however, result in a strike. Fiorito
filed at least a dozen petitions for a writ of habeas corpus while in prison, and not once
was Fiorito granted habeas relief. But a habeas proceeding is not a “civil action” for
purposes of § 1915(g), and therefore the denials of those habeas petitions were not
“strikes” under that provision. See Andrews v. King, 398 F.3d 1113, 1122–23 (9th Cir.
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2005). Some of Fiorito’s dismissed lawsuits had been removed from state court to
federal court, and because in those cases “Fiorito did not bring the actions ‘in a court of
the United States,’ 28 U.S.C. § 1915(g), [he could not] be assessed a strike under
§ 1915(g) regardless of whether his lawsuits [were] meritless, frivolous, or malicious.”1
Fiorito v. Anderson, No. 23?CV?1125 (KMM/LIB), 2023 WL 5155141 (D. Minn. Aug. 10,
2023) (dismissing as frivolous lawsuit brought by Fiorito in state court and removed to
federal court).
And many kinds of dismissals do not constitute “strikes,” even when the
proceeding is a “civil action” and the action was commenced in federal court. To count
as a “strike,” the lawsuit must be dismissed on one of the grounds identified in
§ 1915(g)—that is, for frivolity, maliciousness, or failure to state a claim on which relief
may be granted. Thus, when the United States District Court for the Central District of
Illinois dismissed one of Fiorito’s numerous lawsuits because of the “clear record of
willfully disobedient conduct and bad faith as Plaintiff has repeatedly missed deadlines,
ignored court orders, and provided misleading if not untruthful information to the
Court,” Fiorito v. Samuels, No. 16?1064, 2018 WL 11307319, at *9 (C.D. Ill. Apr. 16, 2018),

This is true even though Fiorito filed lawsuits in state court knowing very well that the
state court would lack jurisdiction over the lawsuit—but also knowing that the lawsuit
would be removed to federal court, and that, by filing the lawsuit in a court lacking
jurisdiction, he would have evaded the mandatory filing fee for that lawsuit, see 28
U.S.C. § 1915(b), and he would have evaded imposition of a strike should the action be
deemed frivolous. See, e.g., Fiorito v. United States, No. 22?CV?2879 (PJS/LIB), 2022
WL 17082831, at *2 (D. Minn. Nov. 18, 2022).
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even that dismissal did not constitute a strike because the action was not expressly
dismissed for frivolity, maliciousness, or failure to state a claim on which relief may be
granted. The same is true of the 2020 dismissal of a case filed by Fiorito in the United
States District Court for the Northern District of Georgia, even though that case also
was dismissed on the grounds that Fiorito had lied to the Court. See Fiorito v. Thompson,
No. 1:20?CV?1682 (LPB), ECF No. 25 (N.D. Ga. June 4, 2020).
Three of the dismissals of lawsuits brought by Fiorito do, however, count as
strikes under § 1915(g):
First, in 2017, Fiorito brought an action in the United States District Court for the
Central District of California seeking preservation of video evidence at the prison where
he was then confined. See Fiorito v. Sylvester, No. 5:17?CV?1253 (JFW/KES) (C.D. Cal.).
This was a “civil action” within the meaning of § 1915(g); Fiorito was not seeking
habeas relief. The order of dismissal in that proceeding is terse, but the magistrate
judge recommended denial of Fiorito’s IFP application in that proceeding on the
grounds that Fiorito had not filed a complaint, and the district judge subsequently
adopted that recommendation and summarily dismissed the case. Although not
explicitly identified in this language, the basis for the dismissal is clearly that Fiorito

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had not stated a claim on which relief could be granted. See id., ECF No. 4 (C.D. Cal.
July 6, 2017). Strike one.2
Second, in 2018, Fiorito filed a civil complaint against the warden of the prison
where he was then incarcerated and several other prison officials on the grounds that
those officials had violated his federal constitutional rights. See Fiorito v. Krueger, No.
1:18?CV?1198 (JES) (C.D. Ill.). Multiple reasons for the dismissal were offered by the
district court in that matter, but the United States Court of Appeals for the Seventh
Circuit rejected those reasons while providing its own explanation for why dismissal
was warranted: Fiorito had failed to state a claim on which relief may be granted. See
Fiorito v. Segal, No. 20?1559, 2022 WL 4809726, at *3 (7th Cir. Oct. 3, 2022) (“Fiorito failed

On the “check?a?box” order used to dismiss the action, the magistrate judge did not
check the box for the proposition that “[t]his denial may constitute a strike under the
‘Three Strikes’ provision governing the filing of prisoner suits.” Fiorito v. Sylvester, ECF
No. 4 (C.D. Cal. July 6, 2017). But nothing in § 1915(g) requires that a dismissal be
designated as a “strike” at the time of dismissal. In fact, several circuit courts have
instructed district courts not to state whether a dismissal does or does not constitute a
strike. See Pitts v. South Carolina, 65 F.4th 141 (4th Cir. 2023); Fourstar v. Garden City Grp.,
Inc., 875 F.3d 1147, 1152 (D.C. Cir. 2017) (“If Congress wanted district courts to
contemporaneously label dismissals as strikes or wanted those labels to bind later
district courts, Congress could have said so in the [statute]. Congress said no such
thing.”); DeLeon v. Doe, 361 F.3d 93, 95 (2d Cir. 2004) (per curiam); cf. Gonzalez v. United
States, 23 F.4th 788, 790 (8th Cir. 2022) (“[T]he judge evaluating a prisoner complaint is
the only one who can look ‘backwards’ and determine whether the first three actions
were dismissed on one or more of the listed grounds.”). “It is well?settled that, in
determining a § 1915(g) ‘strike,’ the reviewing court looks to the dismissing court’s
action and the reasons underlying it,” not whether the dismissing court believed that
the dismissal would constitute a strike. Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir.
2013).
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to state a federal claim because Congress has not provided a remedy for this kind of
alleged constitutional violation by federal officers, and we cannot contradict the
Supreme Court to fill that gap.”). Strike two.
This case is strike three. Fiorito was, as explained above, a prisoner when he
filed this action. Each of Fiorito’s federal?law claims was dismissed on the grounds that
Fiorito had failed to state a claim on which relief may be granted. The Supreme Court
in Coleman v. Tollefson, 575 U.S. 532 (2015), clarified that a dismissal becomes a “strike”
upon dismissal, not at the end of the appellate process. Coleman expressly dodged the
question of whether a prisoner could appeal IFP from the dismissal that would
constitute the third “strike,” see id. at 541, and a circuit split has developed on the issue,
compare Richey v. Dahne, 807 F.3d 1202, 1209–10 (9th Cir. 2015) (holding that prisoners
may appeal IFP from a third strike); and Taylor v. Grubbs, 930 F.3d 611, 620 (4th Cir.
2019) (following Richey); with Parker v. Montgomery Cnty. Corr. Facility/Bus. Off. Mgr.,
870 F.3d 144, 151–54 (3d Cir. 2017) (disagreeing with Richey and finding that the three?
strikes provision applied to the appeal at issue); and Robinson v. Powell, 297 F.3d 540, 541
(7th Cir. 2002); see also Alexander v. Tex. Dep?t of Crim. Just., 951 F.3d 236, 242 (5th Cir.
2020) (Ho, J., concurring).
This Court finds the position of the Third and Seventh Circuits (and of the
dissent in Taylor) ?? which is grounded in the text of the statute itself ?? to be more
convincing than the position of the courts that have concluded that an appeal may be
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taken IFP from a dismissal constituting a third strike ?? which is grounded primarily in
a policy concern that some litigants may not be able to seek appellate review. “The
concern expressed by those courts is legitimate, but it does not require twisting the
statute and allowing a fourth strike,” as Fiorito could yet seek IFP status from the
Eighth Circuit, which would then have to determine for itself whether Fiorito had
incurred three or more strikes for purposes of § 1915(g). Robinson, 297 F.3d at 541. And
even if this were not true and three?strikes status entirely foreclosed Fiorito from being
able to file an appeal in this matter,3 it is the duty of the court “to give effect to the plain
language of the statute.” Parker, 870 F.3d at 153.
Accordingly, Fiorito’s appellate IFP application is barred by § 1915(g). The
application is denied on that basis.

Of course, Fiorito being ineligible for IFP status does not by itself mean that he is
barred from appealing the dismissal of this lawsuit. He could, after all, pay the filing
fee for his appeal. Indeed, this Court suspects that payment of the filing fee would be
far more of an imposition for other prisoners who are subject to § 1915(g) than it would
for Fiorito, who is currently employed (and not at prison wages), see Metropolitan
Council, No. 24?CV?4562 (DSD/DLM), ECF No. 2 at 2; and who was employed for much
of 2024 at an income that would ordinarily preclude most non?prisoner litigants from
IFP status, see ECF No. 6 at 2. All that the three?strikes provision precludes is Fiorito
continuing to file lawsuits in federal court and appeal from the dismissal of those
lawsuits at public expense.
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ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED that the application to proceed in forma pauperis of plaintiff
Michael Fiorito [ECF No. 6] is DENIED.
s/Patrick J. Schiltz____________________
Patrick J. Schiltz, Chief Judge
United States District Court

Dated: January 3, 2025

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