Thomas v. Parker
672 F.3d 1182
10th Cir.2012Background
- Plaintiff Jerry L. Thomas, a prisoner in an Oklahoma state prison, filed a 42 U.S.C. § 1983 civil rights action alleging Eighth Amendment/related violations by Oklahoma Department of Corrections staff during incarceration at James Crabtree Correctional Center.
- The district court granted summary judgment in favor of defendants, and Thomas seeks to appeal the denial.
- Two prior strikes exist: Thomas’s 2010 frivolous-appeal dismissals, later treated as strikes when the Supreme Court denied certiorari in 2011.
- The pivotal issue is whether the district court’s 2008 partial dismissal in Case No. 07-CV-599-W—for failure to state a claim and for failure to exhaust—counts as a third strike under § 1915(g).
- There is a split among circuits on whether partial dismissals can count as strikes; the court adopts the Sixth Circuit position that a mixed dismissal can count as a strike when no claims proceed on the merits.
- The court concludes Thomas has a third strike and denies his motion to proceed in forma pauperis unless he shows imminent danger; otherwise the appeal will be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does partial dismissal count as a strike? | Thomas argues a mixed dismissal should not count as a strike. | Defendants argue the district court’s partial dismissal can count as a strike when no claims proceed on the merits. | Yes; partial dismissal can count as a strike when no meritorious claims remain. |
| Is there a third strike based on Case No. 07-CV-599-W? | Thomas contends the third strike does not arise from a meritorious dismissal. | Defendants rely on the mixed-dismissal reasoning to count as a strike. | Thomas has a third strike under § 1915(g). |
| Does Thomas qualify for the imminent danger exception to § 1915(g)? | Thomas would argue imminent danger justifies continuing in forma pauperis. | There is no ongoing imminent danger exception satisfied. | Imminent danger exception does not apply; relief denied absent payment. |
Key Cases Cited
- Pointer v. Wilkinson, 502 F.3d 369 (6th Cir. 2007) (mixed dismissal can count as a strike when no claims proceed on the merits)
- Thompson v. Drug Enforcement Admin., 492 F.3d 428 (D.C. Cir. 2007) (statutory text suggests strikes accrue on full actions dismissed for listed grounds)
- Turley v. Gaetz, 625 F.3d 1005 (7th Cir. 2010) (endorses plain-language view that partial dismissals may not count as strikes)
- Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172 (10th Cir. 2011) (recognizes timing of strikes from Supreme Court denial in prisoner actions)