Smith v. Veterans Administration
2011 U.S. App. LEXIS 3878
| 10th Cir. | 2011Background
- Smith is an Idaho prisoner who attempted to file a civil rights action in the District of Utah and sought in forma pauperis (IFP) status under the Prison Litigation Reform Act (PLRA) § 1915(g).
- The district court denied IFP, finding three prior federal cases dismissed for frivolousness or failure to state a claim, thus barring IFP under § 1915(g), and dismissed the unfiled complaint for nonpayment.
- The court identified three prior dismissals (Smith 1, 08cv501; Smith 2, 08cv219; Smith 3, 08cv307) as 'strikes' under § 1915(g).
- Smith appealed; the court reviewed whether he had three strikes and thus whether he could proceed IFP on appeal.
- The panel held that Smith had three strikes and was barred from proceeding IFP, both in district court and on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Smith has three strikes under § 1915(g). | Smith contends fewer than three strikes exist. | Defendants assert three prior dismissals qualify as strikes. | Smith has three strikes. |
| Whether Smith 2, 08cv219, dismissal counts as a strike. | Dismissal was prematurity under Heck, not a strike. | Dismissal for failure to state a claim qualifies as a strike regardless of grounds. | Smith 2 dismissal counts as a strike. |
| Whether Smith 3, 08cv307, dismissal counts as a strike. | Dismissal may not be a strike if not properly characterized. | District court described Smith 3 as frivolous and for failure to state a claim, constituting a strike. | Smith 3 counts as a strike. |
| Whether the district court properly denied IFP and whether the appeal can proceed. | If three strikes exist, IFP should be allowed if imminent danger is shown. | Three strikes bar IFP absent imminent danger; no such danger shown. | Smith barred from IFP; judgment affirmed; pay fees to proceed. |
Key Cases Cited
- Davis v. Kan. Dep't of Corr., 507 F.3d 1246 (10th Cir. 2007) ( Heck-based prematurity treated as failure to state a claim for § 1915(g) purposes)
- Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172 (10th Cir. 2011) (imminent danger exception to § 1915(g); require specific, credible allegations)
- Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775 (10th Cir. 1999) (strike accrues when time to appeal expires or certiorari time lapses)
- Snider v. Melindez, 199 F.3d 108 (2d Cir. 1999) (courts should clarify dismissal grounds to aid future § 1915(g) determinations)
- Thompson v. DEA, 492 F.3d 428 (D.C. Cir. 2007) (IFP rulings do not relitigate final judgments; focus on prior record)
- Vasquez Arroyo v. Starks, 589 F.3d 1091 (10th Cir. 2009) (statute of limitations and failure-to-state-a-claim analysis in screening)
- Smith v. Idaho, No. 1:08-cv-00219-BLW (D.Idaho 2008) (unreported) (discussed for context on dismissal grounds and strikes)
- Davis v. Kan. Dep't of Corr., 507 F.3d 1246 (10th Cir. 2007) (repeat entry included to emphasize Heck-state claims)