Case Information
*2 Before W OOD , Chief Judge , and B AUER and R OVNER , Circuit Judges .
W OOD Chief Judge . One of Congress’s expressed goals it passed Prison Litigation Reform Act (“PLRA”) rein in fl ood prisoner litigation—all too often frivolous or vexatious, it thought—clogging courts. See Margo Schlanger, Inmate Litigation H ARV . L. R EV . 1633–34 & nn. 269–70 (2003) (citing Porter Nussle (2002); C ONG R EC . (daily ed. Sept. (statement Sen. Hatch)). Of many tools law introduced serve purpose, one most potent is so called “three strikes” provision. U.S.C. § 1915(g). statute speci es prisoner may proceed forma pauperis if she “has, [three] or more prior occasions, while incarcerated detained facility, brought action appeal United States grounds is frivolous, malicious, fails state claim upon which relief granted ….” Id.
So far, so good. But no legislation spells out everything, PLRA exception. Our concern here way which administer three strikes rule. Many created elaborate forms requiring prisoner litigants list their entire histories. Northern District Il linois’s form, issue here, requires pris oner furnish all following information:
name docket number; date ling;
all plainti s each case, including co plainti ff s aliases; defendants each case; *3 each lawsuit led; name of assigned judge; a description of claim(s) made; disposition of case; date disposition.
N ORTHERN D ISTRICT OF I LLINOIS Complaint Under Civil Rights Act, Title Section U.S. Code, Complaint Un der Constitution (“Bivens” Action), Title Section Code (federal defendants), h ps://www.ilnd.uscourts. gov/_assets/_documents/_forms/_online/1983EDForm092007 .pdf. By collecting this information, a reviewing indigent prisoner’s complaint can ensure itself prisoner plainti ff has not “struck out.”
But solution has created least two new problems: rst, prisoners may not be most reliable narrators their litigation history; second, there serious question whether created “local rule imposing requirement form” cannot be “enforced way causes party lose right because nonwillful failure comply.” F ED R. C IV . P. 83(a)(2). We focus rst these, parties briefed second. Even pris oners incentive lie often do ready access their documents remember details cases. form, however, appears obliv ious these practical problems. Northern District Illi nois sternly warns prisoners “REGARDLESS OF HOW MANY CASES YOU HAVE PREVIOUSLY FILED, YOU WILL NOT BE EXCUSED FROM FILLING OUT THIS SECTION COMPLETELY, AND FAILURE TO DO SO MAY RESULT IN DISMISSAL OF YOUR CASE.” Id. (capitalization original). *4 ‐ 1290, ‐ The two now before us, which we consolidated disposition, enforceability threat.
I
A On October Fabian Greyer, inmate Illinois’s Dixon Correctional Center, fi led suit in Western Division Northern District Illinois. He alleged several ac tions by prison o ffi cials had violated his constitutional rights, including fondling sexual harassment correctional o ffi cer, retaliation using grievance system, refusal place him in protective custody. When he fi lled out lit igation ‐ history portion his form complaint, Greyer tt ested he had “begun other lawsuits in state federal relating [his] imprisonment.” As noted, form warned “[f]ailure comply this provision sult in summary denial your complaint.” Greyer’s state ment, in opinion, was inaccurate. By time his complaint was fi led, he had involved two lawsuits federal court. The rst habeas corpus petition, he led See Greyer Chandler No. CV (C.D. Ill. Jan. 2007). second another civil suit same day present action. Greyer Ill. Dep’t Corr. No. CV (S.D. Ill. Oct. 2017). Neither those quali ed “strike” PLRA, undisputed had disclosed them, Greyer could proceeded suit forma pauperis He therefore had nothing gain from hiding these suits from court. nevertheless issued show cause order requir ing explain why these *5 ‐ litigation history, why dismiss this case as a sanction for fraud on court. Greyer explained response he su ers from mental illness a result he takes psychotropic medications. Additionally, his capacity read write extremely limited. Because his literacy problem, has recruit other prisoners help him pre ‐ pare his fi lings case. He manages this by bartering his food for legal aid. Critically, his near illiteracy prevents him from being able properly “asses[s] what has wri tt en for him.” concluded his explanation with a renewed plea for recruited counsel, stating “dire need” a lawyer’s help. made no fi ndings about truth fal sity Greyer’s statements. found his answers non respon sive “straightforward question requiring simple swer” posed show cause order. Accordingly, dis trict prejudice sanction fraud on court, citing Hoskins Dart 2011). judge made explicit whether Greyer’s omissions either intentional material, quired nding fraud. id .
B
Our comes Michael Johnson, another Dixon inmate, who complaint December alleging numerous unconstitutional conditions con ne ment. He too motion proceed forma pauperis John son rather extensive prison litigation history, most included (or empted include) history form included complaint. *6 1459
That form required Johnson “[l]ist ALL lawsuits you (and your co plainti s, if any) fi led any state fed ‐ eral court (including Central Southern Districts Il linois).” response, Johnson listed varying amounts infor mation about eight earlier suits that he had fi led. While he was able give full information about his most recent still pending cases, information sheets rid dled holes. For example, Johnson listed hav ing “in 2015.” Another he stated was led “U.S. District Court ???”; he could not remember name assigned judge. And that was not his only lapse: four eight cases Johnson listed, there was some piece re quired information he expressly stated he could not member. district court, however, was job. identi
three cases believed missing Johnson’s list: Turner v. Wexford No. CV (C.D. Ill. Mar. 2013); Johnson Benne No. CV (C.D. Ill. Apr. 2016); Johnson Dalke No. CV (N.D. Ill. Nov. 2017). Not ing number Johnson had while imprisoned, district believed Johnson an experienced litigant who should known leave o ff required form. Because these omissions, district ordered Johnson show cause why suit prejudice sanction fraud court. responded simply forgot identi ed, omission simple mistake. He objected characteriza tion himself “experienced” litigant, arguing did know how litigate cases, but had turned thought others violated rights. *7 Johnson’s lack know how corroborated level success he has had his prior lawsuits—zero. While Johnson never incurred strike, also never has won relief cases, identi ed unidenti ed. In response, John son revealed another case, Johnson Haenitsch No. CV (N.D. Ill. Dec. 2017), had same day case. saw nothing Johnson’s response
warranted discharging rule show cause. It reiterated Johnson’s past made him an experienced litigant and thus understood importance providing complete information court. It found (now four) were at around same time Johnson listed, around time present complaint, and thus Johnson remem bered included them. order “send strong message obligation truthful, ethical, forthright” be fore court, concluded dismissal preju dice an appropriate sanction. thought Johnson’s omissions were intentional, but made no explicit explaining why omissions material. Hoskins
Both timely appealed dismissal their cases. We recruited counsel assist them appeal invited amicus curiae defend de fendants’ position, defendant served prior dismissal either suit. We thank counsel excellent advocacy. *8 1290, 18 1459
II
There doubt courts have power to dismiss a lawsuit with prejudice a sanction a party violates a discovery rule or disobeys order allows court to control its docket manage fl ow litigation. Hoskins , F.3d at 543. As we said Hoskins power applies with equal force situation before us, which prisoner fails list her complete history despite complaint form calls for such disclosure. Id . at 544. Because broad discretion fashioning sanctions against liti gants, review factual for clear error their choice sanctions impose abuse discretion. Id.
But court’s sanctioning power unbounded. Many sanctions are authorized rules civil procedure. See, e.g., F ED R. C IV . P. 37(b) (discovery violations); 16(f) (failure obey scheduling pretrial order); 41(b) (dismissal failure comply with rules order). now before us, however, seems relied its inherent authority. Supreme Court repeatedly “cautioned use inherent powers ‘exer cised with restraint discretion.’” Trade Well Int’l v. United Cent. Bank F.3d (7th Cir. 2015) (quoting Chambers v. NASCO, Inc., U.S. (1991)). inherent sanctioning powers “subordinate valid statutory direc tives prohibitions.” Law Siegel (2014). Courts evaluate appropriateness given sanction, especially “draconian” sanction dismissal prejudice. Barnhill United States, 1367–69 (describing dismissal prejudice “draconian,” “severe,” “harsh,” “powerful,” “serious,” *9 “extreme” sanction for party’s “contumacious” miscon ‐ duct). As we stressed, in but most extreme situa ‐ tions courts consider whether lesser sanction than dismissal prejudice would appropriate. Oliver Gramley F.3d (collecting cases). Most importantly, must make factual ndings ade quately support use their inherent sanctioning powers.
The question here is whether Greyer and commit ted fraud court through omissions, and in partic ular whether those omissions were both intentional ma terial. Hoskins brief orders do address those points. In Greyer’s case, said nothing intentionality materiality, it hard infer such what it did discuss. Johnson’s case, while indicated its belief his omissions were in tentional, o ered explanation why those omissions were material.
A believed Greyer’s reply its show
cause order unresponsive question why his history. But, taken context, ex actly what addressed. While Greyer never speci cally said “I did list those because …,” did fully explain circumstances omissions. When viewed liberal light which take pro se pleadings, see Erickson Pardus (2007), Greyer’s explanation failures plain: mental health issues illiteracy created situation did fully understand what being asked him, thus omissions inad vertent.
10 18 1290, 18 1459
And is not all. A lawyer might thought both cases omi tt ed fell outside scope the quest form. Whether a habeas corpus petition is a “relating [one’s] imprisonment” (in sense conditions con nement), opposed validity conviction sentence, subject a tt ention Supreme Court years. See, e.g., Skinner v. Swi tz er, 562 U.S. 521 (2011); Wilkinson v. Dotson , 544 U.S. 74 (2005); Heck v. Humphrey, 512 (1993); Preiser v. Rodriguez, U.S. 475 (1973). This is especially important current se tt ing, because habeas corpus petitions do not give rise strike under PLRA. Walker v. O’Brien , 626, 633–34 (holding “if properly action U.S.C. §§ 2254, 2255, it ‘civil action’ PLRA applies.”). Understandably, someone legal training might draw conclusion he include habeas corpus petition on list “relating [his] imprisonment.” And Greyer’s other lawsuit yet “be gun” lled out PLRA form, con temporaneously case. apparent conclusion Johnson’s
omissions intentional similarly based on erroneous factual conclusions. Granted, Johnson tt ed two earlier included form: Johnson v. Ben ne tt No. CV (C.D. Ill. Apr. 2016); Johnson v. Dalke No. CV (N.D. Ill. Nov. 2017). Nonetheless, neither gave rise strike: Johnson voluntarily dis missed Benne tt after surviving motion dismiss exhaus tion grounds; voluntarily Dalke after suc cessfully ge ing beyond screening process. two missing identi court— Turner Wex ford No. CV (C.D. Ill. Mar. 2013); *11 Haenitsch No. CV (N.D. Ill. Dec. 2017)—appear not to fall within the scope the question on the form. It seems that Johnson was not even plainti ff in Turner Alt hough name was listed the court’s docket, he did not sign complaint take action to suggest that wished to be part that case. Turner realized that Johnson (as well another person apparently named by Turner) had not done anything to suggest that they wished to involved that lawsuit them immediately. It is not sanctionable conduct to fail to list into which one conscripted when instruction list that one “ led.” Nor did Haenitsch meet description form required disclosure. It requested formation only about that were “ led,” Haenitsch not yet district Johnson swore form’s accuracy.
Given these errors, record now stands does not contain enough evidence support court’s belief Johnson intentionally tt those four cases. That nd ing undercut by Johnson’s frank admission form did not remember information about past cases. On every not currently active, Johnson re sponded least form’s questions either question marks explicit statement could member requested information. great leap think unintentionally forgo en cou ple prior cases.
B
Even if, sake argument, assume Greyer’s Johnson’s tent clearly erroneous, erred failing *12 12 18 18 1459 make a ruling on materiality in each of these cases. Materiality a context speci c inquiry, but “[u]nder any understanding of concept, materiality ‘look[s] to e ff ect on the likely or actual behavior recipient of alleged misrepresenta tion.’” Universal Health Servs., Inc. v. United States S. Ct. (2016) (quoting R. Lord, Williston on Contracts § 69:12, p. ed. 2003) (Williston)); see Air Wisconsin Airlines Corp. Hoeper (2014) (materiality a falsehood depends “the identity relevant reader or listener,” but identity “varies according context”).
Although we know an omission material be fore a sanction a litigant dismissing her prejudice, we yet occasion dis cuss what makes an omission material purposes section 1915(g). As usual, however, begin maxim “[i]t a judge’s job add or otherwise mold statu tory text try meet statute’s perceived policy objectives.” Fourstar Garden City Group, Inc. (D.C. (Kavanaugh, J.). Thus, while Congress hoped PLRA would lessen amount baseless prison litiga tion, courts’ job only implement statute. text o ers guidance meaning materiality this purpose. Two provisions PLRA detail dis trict role screening prisoner complaints. U.S.C. § 1915(g) states that: event shall prisoner bring civil ac
tion or appeal judgment civil action or proceeding section if prisoner has, more prior occasions, while incar cerated detained facility, brought action appeal United States *13 that was dismissed grounds that it is friv olous, malicious, or fails state claim upon relief be granted, unless prisoner is imminent danger serious physical injury.
Relatedly, U.S.C. § 1915(e)(2) outlines situations that “shall” lead dismissal “at time if determines” that they obtain: rst, if “the allegation poverty is untrue,” second, if action or appeal is frivolous, malicious, fails state claim, or seeks monetary relief from an immune de fendant. See also U.S.C. § 1915A (requiring mandatory screening prisoner complaints).
We can deduce what materiality mean from these provisions. If an undisclosed past case friv olous, malicious, or failed state claim ( i.e. it or strike), then omission that case material. An tt past would material if signi cant factual overlap currently case, because that could suggest current frivolous or malicious. Lindell McCallum F.3d (7th Cir. 2003) (noting maliciousness context means intent harass an opposing party). But there are possibilities stat ute does address: cases bearing eligibility forma pauperis status; frivolous or malicious; escaped wholesale dismissal fail ure state claim, see Turley Gae tz (no strike several claims dismissed); did empt recover someone immunity.
14 18 1290, 18 1459 notable majority which have ffi rmed dismissal either without prejudice, prob lem material failure disclose—that is, failure to veal led strike, demonstrated prisoner had already struck out. See, e.g. , Ozsusamlar v. Szoke , 669 F. App’x 795, 796 (7th Cir. 2016); Postlewaite v. Duncan , 668 F. App’x 162, 163–64 (7th Cir. 2016); Ramirez v. Barsanti , 654 F. App’x (7th Cir. 2016); Thompson v. Taylor , 473 F. App’x (7th Cir. 2012); Sloan Lesza , F.3d (7th Cir. 1999); see also Jackson Fla. Dep ʹ t Corr. , F. App’x 2012). one exception pa ern appears Hoskins But Hoskins had simultaneously ve civil rights complaints, on each complaint form failed disclose “three [prior] federal civil rights on similar claims still litigating .” Hoskins F.3d at (emphasis added). Instead, Hoskins stated on every form no litigation history at all. Although none Hoskins’s undisclosed strikes, they involved “sim ilar claims” current suits so some ve later suits “frivolous malicious.” U.S.C. § 1915(e)(2); Lindell We found no abuse discretion on those facts dismissal prejudice. Hoskins illustrates nal point: remain empow ered sanction extreme bad faith conduct. Nonetheless, they proceed carefully before imposing severe sanctions prison litigants who omit portions histories, if those omissions do add strikes thus bearing prisoner’s ability proceed PLRA.
Turning back appeals before us, we have no trouble concluding none of omi tt ed by Greyer or John ‐ son meet applicable standards materiality. Greyer’s lone prior a habeas corpus petition and thus not one could yield a strike; identi ed dis ‐ trict had not yet begun Greyer swore accu racy complaint. And explained, but two Johnson’s either not strikes, were con temporaneously led, or did actually involve him. While Johnson technically mentioned remaining two, failure do so material, both those voluntarily after favorable rulings. is table neither nor accumulated any strikes throughout time litigating federal courts.
C
In PLRA context elsewhere, essential distin guish between a negligent, reckless, even willful act, hand, a fraudulent act, other. A nding fraud opens a litigant additional heightened penalties thus requires a showing fraudulent intent. (Fraud alle gations trigger more demanding pleading standard, see F ED R. C IV . P. 9(b).) contracts, example, party might intentionally
breach contract, even “widespread” “systematic” way, but manner necessarily fraudulent. Green berger GEICO Gen. Ins. Co. 399–400 2011). A nding fraud requires “that defendant en gaged deceptive acts practices distinct lying breach contract.” Id. at di erence between intentional breach fraudulent “deception time promise made,” Corley Rosewood Care Ctr., Inc. Peoria *16 ‐ ‐ 1459 F.3d (7th Cir. 2004), can the deciding factor between civil and criminal liability. See, e.g. , ex rel. O’Donnell Countrywide Home Loans, Inc. F.3d (2d Cir. 2016) (overturning of mail wire fraud viola ‐ tions for “selling poor quality mortgages government enti ‐ ties” because there evidence of deceptive intent at time of contracting). law of torts, fraudulent misrepresentation can lead an expanded array damages. An innocent negligent
misrepresentation gives rise only liability for “the di er ence between value what has parted value what received transaction.” Restate ment (Second) Torts § 552C (1977). But fraudulent mis representation allows plainti ff recover “bene t bar gain” damages as well. Id. § 549; see Roboserve, Inc. Kato Kagaku Co. F.3d (“Where misrep resentation induced victim consummate bargain, bene t bargain damages appropriate give victim rewards reasonably expected con tract.”). distinction between negligence fraud just im
portant PLRA laws contract torts. When appropriate, ensure pris oner’s negligent even reckless mistake improperly characterized intentional fraudulent act.
III
Twenty years ago, lamented “[t]he federal judiciary needs (but lacks) central database litigants whom § 1915(g) applies.” Sloan Since *17 time, recordkeeping has improved, though it still per fect. The district courts have commendably developed forms facilitate handling pro se led prisoners and nonprisoners alike. The ensure, however, that those forms stay within boundaries Rule ( i.e. that they do add burdens beyond those authorized stat ute for litigants). forms also need be realistic: prisoners constantly complaining legal papers have con scated or lost, and seems likely this happens time time. Perhaps something simple catch all ques tion would avoid problems we seen here: “While you were incarcerated detained any facility, you any court United States dismissed frivolous, malicious, for failure state claim upon relief can granted? List such you can remember indicate where they best your ability.” answer such question would give crucial information: has this person struck out, purposes proceeding forma pauperis not? would reveal, if new those grounds, whether person accumulated another strike.
*** each two before us, rested
its conclusion plainti s commi fraud fl awed factual overly broad view what constitutes material omission. For reason, V ACATE sanctions orders against both R EMAND further proceedings consistent opinion.