Childs v. Miller
2013 U.S. App. LEXIS 8257
| 10th Cir. | 2013Background
- Childs, an Oklahoma prisoner, sues under 42 U.S.C. § 1983 alleging retaliation for grievances about medical care.
- Defendants, LCF employees, allegedly delayed refilling his asthma prescription in May 2008 as retaliation.
- District court dismissed the federal retaliation claim under Rule 12(b)(6) after de novo review, but allowed amendment for deficiencies.
- Childs received multiple extensions to amend; he filed an untimely proposed amended complaint and sought another extension.
- District court denied the fifth extension and dismissed the action; this appeal follows.
- The court later held that Childs has three strikes under 28 U.S.C. § 1915(g) and affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly dismissed Childs’ retaliation claim. | Childs argues the claim was pled with sufficient detail. | Defendants contend the claim failed to allege each defendant’s participation. | Yes, claim dismissal affirmed for failure to state a claim. |
| Whether Childs has three strikes under § 1915(g). | Childs contends prior dismissals do not count as strikes. | Court must count pre-1996 and later dismissals as strikes. | Three strikes found; eligibility to proceed ifp barred absent imminent danger. |
| Whether prior strikes counted because of pre-PLRA or post-PLRA standards. | Past dismissals should not count under current § 1915(g) analysis. | Dismissals pre-PLRA still qualify as strikes for present analysis. | Pre-PLRA strikes count toward § 1915(g) total. |
Key Cases Cited
- Hafed v. Federal Bureau of Prisons, 635 F.3d 1172 (10th Cir. 2011) (three strikes rule applies to frivolous or malicious filings)
- Day v. Maynard, 200 F.3d 665 (10th Cir. 1999) (three strikes rule applies even if dismissal is without prejudice)
- Strope v. Cummings, 653 F.3d 1271 (10th Cir. 2011) (ripening of strikes influenced by Rule 58 timing)
- Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010) (standard of review for Rule 12(b)(6) dismissal; pro se liberality)
- Woodford v. Ngo, 548 U.S. 81 (U.S. 2006) (PLRA aims to curtail prisoner litigation abuse)