PAUL v. MARBERRY (September 6, 2011)

Jeffrey Paul, an inmate in an Indiana federal prison, brought suit alleging that prison personnel used excessive force in removing him from his cell, in violation of the Eight Amendment. It was the fifth lawsuit that Paul had filed while in custody. Each of the prior four lawsuits had been dismissed as unintelligible under Rule 8(a)(2). In each case, the court gave Paul leave to amend. In each case, Paul did not take advantage of that opportunity. In each case, the court dismissed without prejudice for failure to prosecute. Judge Lawrence (S.D. Ind.) denied Paul's request to proceed in forma pauperis on the grounds that he had three "strikes" under the Prison Litigation Reform Act. Paul appeals.

In their opinion, Seventh Circuit judges Posner, Kanne, and Hamilton reversed and remanded. The statute imposes a "strike" when a complaint is dismissed as "frivolous, malicious, or fails to state a claim." But Paul's strikes are not for those reasons. All of his complaints were dismissed for failure to prosecute, a basis not listed in the statute. The Court noted, however, that the proper procedure after a plaintiff fails to take advantage of permission to amend an unintelligible complaint is a dismissal with prejudice for failure to state a claim. Nevertheless, the Court concluded that a plaintiff, particularly a pro se prisoner plaintiff, should be allowed to rely on what courts actually did, not what they should have done. None of Paul's prior dismissals constituted strikes. He should be allowed to proceed in forma pauperis.