HAURY v. LEMMON (August 25, 2011)

Michael Haury, an Indiana prison inmate, filed a pro se lawsuit alleging that prison personnel interfered with the delivery of his legal mail and also failed to provide a sufficient law library. Judge Miller (N.D. Ind.) denied his request to proceed in forma pauperis. He concluded that Haury had "three strikes" under the Prison Litigation Reform Act of 1995. Haury appeals.

In their opinion, Seventh Circuit Judges Coffey, Rovner, and Hamilton reversed and remanded. The Prison Litigation Reform Act does bar an inmate from filing a civil suit and proceeding in forma pauperis if he has three "strikes" -- that is, if three prior lawsuits were dismissed as frivolous, malicious, or for failing to state a claim. Here, Haury's third strike is a 1991 case that the court below described as being dismissed as "frivolous for want of jurisdiction." The Court noted that that was not entirely accurate. In fact, although a portion of the 1991 complaint was dismissed for failure to state a claim, two claims were dismissed for lack of jurisdiction. The judge who dismissed the case did not characterize the case is frivolous. The PLRA does not list lack of jurisdiction as a basis on which to impose a strike. The Court noted that the D.C., Ninth, and Second Circuits have all concluded that dismissal for lack of jurisdiction does not amount to a strike (unless, of course, the assertion of jurisdiction as frivolous). The Court was persuaded by its sister circuits’ reasoning and concluded that the district court erred in denying in forma pauperis status.