On October 15, the Court withdrew this opinion. The appeal remains under advisement.

TURLEY v. GAETZ (OCTOBER 14, 2010)

Greg Turley is an inmate in an Illinois prison. He claims that prison employees are retaliating against him because he has brought past litigation regarding his prison conditions. He filed a § 1983 complaint against prison employees and sought to proceed in forma pauperis (IFP). Judge Murphy (S.D. Ill.) denied his request to proceed IFP. He concluded that Turley was ineligible for IFP status because he has had it least part of three prior lawsuits dismissed for failure to state a claim. Turley appeals.

In their opinion, Judges Ripple, Kanne, and Sykes reversed and remanded. The Court noted that the issue in the case was the proper interpretation of the Prison Litigation Reform Act (“PLRA”). One section of the PLRA (the “three strike” rule) attempts to restrict a prisoner's ability to proceed IFP if he has a history of frivolous litigation. Specifically, it states that a prisoner cannot proceed IFP if he has, on three or more occasions, brought “an action or appeal” that was dismissed as frivolous, malicious, or for failure to state a claim. Turley's relevant litigation history comes from three complaints: 1) a district court dismissed one claim for failure to state a claim and allowed two claims to go to the jury -- the case settled after a jury verdict in Turley's favor, 2) a district court dismissed a claim against some defendants for failure to state a claim and later granted summary judgment in favor of the remaining defendants, and 3) a district court dismissed one claim against all defendants and a second claim against some defendants for failure to state a claim and granted summary judgment to the remaining defendants on account of Turley's failure to exhaust administrative remedies. In each of Turley's complaints, therefore, at least one claim was dismissed for failure to state a claim and at least one claim survived dismissal. The question for the Court was whether any of these dismissals constituted a "strike" under the PLRA. The Court started with the statutory language. It stated that the terms "action" and "claim" are well defined. An action refers to the allegations of the complaint while a claim is an individual request for relief. The natural reading of the statute and its use of “action,” not “claim,” is therefore that a prisoner gets a strike when an action is dismissed in its entirety for one of the three statutory reasons. The D.C. Fifth, Sixth, and Eighth Circuits have concluded likewise. Although comfortable in its holding, the Court felt it necessary to address the earlier opinions in George and Boriboune. They each stated that a prisoner could get a strike when any claim was dismissed. The Court decided that the cases did not control – and did not need to be overruled -- since neither case was presented with or decided the action versus claim issue and the references in dicta were not essential to the outcome. As further support for its conclusion, the Court noted that the Eighth Circuit decision predated both cases and the D.C. and Sixth Circuit cases predated George. Neither Seventh Circuit panel indicated an intention to create a circuit split or circulated its opinion pursuant to Circuit Rule 40(e). Finally, the Court examined Turley's litigation history in light of its holding and concluded that Turley not only did not have three strikes -- he had none.