Strope v. Cummings
653 F.3d 1271
| 10th Cir. | 2011Background
- Strope, a Kansas prisoner, is pro se and proceeding IFP with three civil appeals filed October 2010.
- Court may revoke IFP status when plaintiff has three prior dismissals for failure to state a claim (three strikes).
- Strope previously filed seven dismissals between 1989–2005, all for failure to state a claim; some predate the current appeals.
- Three early dismissals Pettis, Hendry, Sebelius were originally treated as strikes under pre-Jones v. Bock law.
- Jones v. Bock (Supreme Court) later held exhaustion is an affirmative defense; retroactivity limited to cases still open on direct review.
- Court concludes all seven dismissals ripened as strikes before current appeals and no imminent danger exception is shown; fees must be prepaid or appeals dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Strope's current appeals are barred as three-strikes. | Strope contends no three-strikes bar applies. | Defendants maintain three strikes do apply and prepay is required. | Strope barred under three-strikes; must prepay fees. |
| Whether Pettis, Hendry, and Sebelius counts as strikes and when they ripened. | Requests dismissal as non-strikes due to retroactivity. | These counts are strikes ripening at different dates. | They are strikes; ripened dates fixed (2003–2006 under Rule 58 amendments). |
| Whether Trammer, Wertz, and Freeman dismissals were strikes and timing. | Procedural issues argued against counting as strikes. | Counts as strikes; timing aligned with appellate deadlines. | Trammer counts as a strike; the 1990s Wertz/Freeman dismissals later ripened as strikes. |
| Whether retroactivity of Jones v. Bock affects Pettis/Hendry/Sebelius retroactively. | Jones should retroactively alter past rulings. | Retroactivity limited to cases still open on direct review; Pettis/Hendry/Sebelius are not. | Jones does not retroactively apply to Pettis/Hendry/Sebelius. |
Key Cases Cited
- Hafed v. Fed. Burea u of Prisons, 635 F.3d 1172 (10th Cir. 2011) (three-strikes rule and imminent danger exception)
- Jones v. Bock, 549 U.S. 199 (Supreme Court 2007) (exhaustion is an affirmative defense)
- Anderson-Bey v. Zavaras, 641 F.3d 445 (10th Cir. 2011) (retroactivity for new rule applies only to cases still open on direct review)
- Harper v. Va. Dep't of Taxation, 509 U.S. 86 (Supreme Court 1993) (retroactivity and procedural timing principles cited)
- Shalala v. Schaefer, 509 U.S. 292 (Supreme Court 1993) (appeal filing and timing framework)
- Ross v. Cnty. of Bernalillo, 365 F.3d 1181 (10th Cir. 2004) (exhaustion rules and pleading standards in § 1915 contexts)
- Steele v. Fed. Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003) (pleading exhaustion standards prior to Jones v. Bock)
- Dubuc v. Johnson, 314 F.3d 1205 (10th Cir. 2003) (constitutionality of § 1915(g))
- United States v. 1002.35 Acres of Land, 942 F.2d 733 (10th Cir. 1991) (statutory interpretation of § 1915(g) and strikes)