Haury v. Lemmon
2011 U.S. App. LEXIS 17745
| 7th Cir. | 2011Background
- Haury, a self-represented prisoner, filed a 42 U.S.C. § 1983 action alleging interference with legal mail and inadequate law library access.
- District court denied his request to proceed IFP based on three strikes under § 1915(g).
- Haury appeals the three-strikes determination and moves to proceed IFP in this court.
- PLRA § 1915(g) generally precludes IFP practice where the inmate has three strikes unless a serious-injury danger exception applies.
- Court reviews the district court’s § 1915(g) application de novo, noting the need to count only enumerated strike bases and not all prior dismissals.
- Court concludes only two of the district court’s three strikes are valid, and the IFP gate remains open pending further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Haury has three strikes under § 1915(g) | Haury argues only two of the prior dismissals count as strikes | Lemmon contends the district court properly counted three strikes | Only two strikes count; not three |
| Whether Haury may proceed IFP on appeal | Haury seeks pauper status based on two valid strikes | Defendants argue the district court correctly applied § 1915(g) | Haury may proceed IFP on appeal; district court to reassess pauper status on remand |
Key Cases Cited
- Thompson v. Drug Enforcement Admin., 492 F.3d 428 (D.C. Cir. 2007) (plain-language § 1915(g) limits strikes to enumerated grounds; lack of jurisdiction not necessarily a strike)
- Turley v. Gaetz, 625 F.3d 1005 (7th Cir. 2010) (three-strikes analysis; dismissal grounds—enumerated vs. jurisdiction)
- De La Garza v. De La Garza, 91 F. App’x 508 (7th Cir. 2004) (unpublished; warning that frivolousness must accompany jurisdictional dismissal for a strike)
- Andrews v. King, 398 F.3d 1113 (9th Cir. 2005) (jurisdictional dismissal not a Strike when not frivolous)
- Tafari v. Hues, 473 F.3d 440 (2d Cir. 2007) (jurisdictional defect dismissal not a strike when jurisdictional assertion not frivolous)
- Tolbert v. Stevenson, 635 F.3d 646 (4th Cir. 2011) (§ 1915(g) requires enumerated grounds for strike against entire action)