Prisoner’s Appeal Proceeds Despite Three Strikes Under The PLRA

May 24, 2017

In Isby v. Brown, No. 15-3334, (7th Cir. May 10, 2017), the Seventh Circuit Appellate Court denied Defendants’ motion to dismiss based on Plaintiff’s failure to inform the district court of his numerous strikes under the Prisoner Litigation Reform Act (“PLRA”).

In Isby, the plaintiff, a prisoner at the Indiana Department of Corrections, had been in solitary confinement for over ten years. He filed suit against various prison employees under 42 U.S.C. § 1983, alleging that his continued placement in solitary confinement violated his Eighth Amendment right to be free from cruel and unusual punishment, as well as his Fourteenth Amendment Rights under the Due Process Clause. The prisoner sought leave to proceed in forma pauperis (to proceed without paying filing fees). He had already accumulated three strikes for filing frivolous suits or appeals and was thus restricted under the PLRA from seeking pauper status again. However, unaware of the prisoner’s prior strikes, the district court granted his request to proceed in forma pauperis. Following a bench trial, the district court later granted judgment in favor of the correctional staff, and the prisoner appealed.

Still unaware of the prisoner’s three-strike status, the district court granted him leave to proceed in forma pauperis on appeal. After briefings were complete and two days before oral arguments, it was brought to the Appellate Court’s attention that the prisoner was on restricted status under the PLRA. The Defendant correctional officials sought dismissal based on the PLRA.

The Appellate Court denied the Defendants’ motion to dismiss. The Court stated that section 1915(g) of the PLRA does not preclude a prisoner from bringing suit – it merely requires that the prisoner prepay all filing fees in full or make a showing of imminent danger of serious physical injury. The court reasoned that it was not precluded from hearing Plaintiff’s appeal despite his three strikes and failure to notify the court of same because: (1) the length of his placement in solitary confinement implicates serious constitutional concerns; (2) Defendants only raised the PLRA issue two days before oral arguments; and (3) Plaintiff’s counsel agreed to pay the fees on behalf of his client consistent with Illinois Rule of Professional Responsibility 1.8(e)(2), which allows attorneys to pay court costs and litigation expenses on behalf of an indigent client.

The court, however, explicitly warned future litigants that allowing the prisoner to proceed with his case was exceptional under these specific circumstances and that restricted filers must alert the court of their three strikes status or risk dismissal of their suit due to lack of payment and as a sanction for misconduct.

Isby v. Brown

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