Court of Appeals issues pro-inmate ruling under the PLRA

Inmates have to file non-frivolous lawsuits or they will get into big trouble. Under the three-strikes-yer-out provision of the Prison Litigation Reform Act, a strike is "an action or appeal" that was dismissed as frivolous, malicious, or for failure to state a claim. With three strikes, you will not be allowed to file any subsequent lawsuits in formal pauperis, a Latin term that says the court will waive any filing fees for poor inmates. While the PLRA was enacted in the 1990s during the Bill Clinton/Newt Gingrich period, courts are still interpreting what the statute means.

The case is Escalara v. Samaritan Village, issued on September 12. Is a strike an actual lawsuit in its entirety, or individual claims? The distinction is important, as many lawsuits have multiple claims. What if someone files a lawsuit that has one frivolous claim but also a meritorious claim? Is that a strike? Most of the Circuit Courts that have taken up this issue have found that "dismissal of some but not all of the multiple claims in a complaint" cannot constitute a strike. The Second Circuit (Wesley, Chin and Bianco) agrees with that reasoning and finds that "mixed dismissals are not strikes under the  PLRA."

This reasoning is good for Escalara, because he had five cases, some of which had frivolous claims, such that only two of the cases are strikes. One dismissal was strictly on procedural grounds because he did not file a legible complaint, so that's not a strike. Another case was not a strike because, while the claims were dismissed, they were not found to be frivolous or malicious. A third case had some but not all claims dismissed; one claim was dismissed for lack of subject matter jurisdiction (not a frivolous strike) and the other was dismissed for failure to state a claim, which is a strike. One of plaintiff's other cases was a strike under the rules. A fifth case may or may not have been a strike since it involved a tricky area of law involving witness immunity, and the Court of Appeals leaves that issue alone since he can win this appeal even if that fifth case was in fact a strike. In the end, when you do the math, while plaintiff's cases were all dismissed for one reason or another, they were not all frivolous. Under the formulation adopted by the Second Circuit in counting strikes, Escalate is not a three-striker.