David Orr v. Tom Clements
2012 U.S. App. LEXIS 17457
| 8th Cir. | 2012Background
- Orr, a Missouri inmate, seeks leave to proceed in forma pauperis on appeal.
- The district court dismissed Orr’s civil rights action under 28 U.S.C. § 1915A for failure to state a claim, prior to service of process.
- The issue is whether Orr is barred from pauper status on appeal under § 1915(g)’s three strikes provision.
- Orr acknowledges two prior dismissals; records show three dismissals under § 1915(e)(2)(B)(i)-(ii).
- The three prior dismissals were Purkett I, Purkett II, and Larkins, each for failure to state a claim or related deficiencies, and each was without prejudice.
- The court concludes that Orr is ineligible under § 1915(g) and must pay the $455 filing fee within 14 days or the appeal will be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Orr has three strikes under § 1915(g). | Orr contends he has two strikes plus the current action. | The three prior dismissals (Purkett I, Purkett II, Larkins) count as strikes. | Yes; Orr has three strikes. |
| Do dismissals without prejudice count as strikes under § 1915(g)? | Dismissals without prejudice should not count. | Dismissals that are ‘dismissed’ on grounds listed in § 1915(g) count regardless of prejudice. | Dismissals without prejudice count as strikes. |
| Does the current dismissal count as a strike for purposes of § 1915(g)? | Not applicable outside the three prior strikes. | The current dismissal is not counted as a strike for purposes of § 1915(g). | The current dismissal is not counted among the three for eligibility analysis; prior three suffice. |
Key Cases Cited
- Paul v. Marberry, 658 F.3d 702 (7th Cir. 2011) (two strikes can accrue from separate actions for § 1915(g))
- O’Neal v. Price, 531 F.3d 1146 (9th Cir. 2008) (counts of strikes across separate actions)
- Day v. Maynard, 200 F.3d 665 (10th Cir. 1999) (discussion of whether dismissal without prejudice counts as a strike)
- McLean v. United States, 566 F.3d 391 (4th Cir. 2009) (Fourth Circuit rule on dismissal with prejudice/prejudice distinction)
- Cyprus Amax Coal Co. v. United States, 205 F.3d 1369 (Fed. Cir. 2000) (prejudice considerations in final appealability)
- Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589 (7th Cir. 1986) (dismissal as an action; final appealable judgment)
- Guzowski v. Hartman, 849 F.2d 252 (6th Cir. 1988) (dismissal under Rule 12(b)(6) may be without prejudice)