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Tuesday, September 06, 2011

Ind. Decisions - One Indiana decision today from 7th Circuit

In Paul v. Marberry (SD Ind., Lawrence), an 8-page opinion, Judge Posner writes:

The district judge denied the plaintiff’s motion to be allowed to proceed in forma pauperis, on the ground that he had three strikes, one for each of three previous civil suits brought by him that had been dismissed. 28 U.S.C. § 1915(g). (Two of those suits are called Paul v. United States District Court. They are No. 2:09-cv-345-LJM-DML (S.D. Ind. Dec. 3, 2009), and No. 2:09-cv-347-LJM-DML (S.D. Ind. Dec. 3, 2009). The third is Paul v. United States, No. 2:09-cv-346- RLY-WGH (S.D. Ind. Dec. 2, 2009).) The plaintiff failed to pay the filing and docketing fees in full and so the judge dismissed the suit, though without prejudice. * * *

The statute is explicit, and the case law confirms [omitted] that classifying a dismissal as a strike depends on the grounds given for it; since most prisoners litigate their civil claims pro se, they should not be required to speculate on the grounds the judge could or even should have based the dismissal on. It is true that had the plaintiff appealed any of his previous dismissals, we might have affirmed on a ground, different from the district judge’s, that would have given him a strike.[omitted] But that is different from giving a prisoner a strike, especially a third strike, when no court had mentioned a ground for dismissal specified in the statute for calling a strike.

We reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi on September 6, 2011 12:54 PM
Posted to Ind. (7th Cir.) Decisions