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Prison Litigation Reform Act: "Three Strikes" Rule

     A prisoner claimed that the defendant prison officials were responsible fot using excessive force against him on several occasions. After the lawsuit was dismissed, he appealed, and sought an order giving him the trial transcript for free on the basis of poverty. Denying this request, the appeals court noted that he was not--and could not--proceed as a pauper because he had "three strikes (meritless lawsuits), and the exception for prisoners in imminent danger of serious physical injury did not apply. Maus v. Baker, #13-2420, 2013 U.S. App. Lexis 18661 (7th Cir.).
    A prisoner filed a lawsuit against a health care service and five medical professionals claiming that they were deliberately indifferent to his chronic serious medical conditions of diabetes and Hepatitis C, and that this had caused the need for partial amputation of his feet and visual impairment. He argued that this deliberate indifference was ongoing, subjecting him to a risk of coma, death, or further amputations. While he had filed three previous lawsuits dismissed as frivolous, he was not precluded from proceeding as a pauper on the current lawsuit under the "three strikes" rule of the Prison Litigation Reform Act because his claims of an ongoing risk of additional harm fell within the "imminent danger" exception to that rule. Vandiver v. Prison Health Servs., Inc. #11-1959, 2013 U.S. App. Lexis 17028, 2013 Fed App. 234P (6th Cir.).
     A federal trial court denied a prisoner the right to proceed with his lawsuit as a pauper under the "three strikes" rule of the Prison Litigation Reform Act, and ordered dismissal of the lawsuit if he failed to pay the required filing fee. The prisoner had, according to the trial court, accumulated three of his strikes while litigating a petition for habeas corpus challenging his criminal conviction and not raising any issues concerning his conditions of confinement. The federal appeals court ruled that since that his petition and its appeal were not civil actions for purposes of the three strikes rule, their dismissals were not "strikes." Since that eliminated three of his supposed five strikes, he should be allowed to proceed with his lawsuit as a pauper. Jones v. Smith, #12-401, 2013 U.S. App. Lexis 12446 (2nd Cir.).
      A prisoner's federal civil rights lawsuit against correctional officials was dismissed on a motion for summary judgment. He sought to proceed as a pauper on appeal, and argued that he was not barred from doing so under the "three strikes" rule of the Prison Litigation Reform Act because the dismissals occurred at the summary judgment stage. The appeals court rejected this, stating that the issue, for the "three strikes" rule was whether there were three or more prior dismissals of a case as frivolous, malicious, or failing to state a claim, not what the procedural stage of the case was when the case was dismissed. As he had more than three prior dismissals that expressly stated they were because his lawsuits were frivolous, malicious, or failed to state a claim, the "three strikes" rule applied. Blakely v. Wards, #11-6945, 2012 U.S. App. Lexis 25564 (4th Cir.).
    A prisoner claimed that a correctional facility failed to enforce a grooming policy requiring that each inmate barber have three interchangeable razor heads, with one being disinfected while another was in use. He argued that this exposed him to a risk of infection. He sought to proceed on the lawsuit as a pauper and the trial court dismissed the claim, which was the plaintiff's third dismissal; for failure to state a claim. A federal appeals court interpreting the "three strikes rule" of the Prison Litigation Reform Act ruled that the dismissal of the immediate claim could not count as the third strike for purposes of the rule, as it was not a third "prior" dismissal. Counting it as the third strike would effectively insulate the dismissal itself from appellate review. Henslee v. Keller, #11-6707, 681 F.3d 538 (4th Cir. 2012)      The "three strikes" provision of the Prison Litigation Reform Act, barring a prisoner from proceeding in court as a pauper after "three strikes," applies only when three of his prior lawsuits have been entirely dismissed as frivolous, malicious, or failing to state a claim. The trial court therefore acted erroneously in regarding a plaintiff prisoner as having "three strikes" when only some claims in each of three prior lawsuits had been dismissed on such grounds. Tolbert v. Stevenson, #09-8051, 2011 U.S. App. Lexis 2814 (4th Cir.).
     The "three strikes" provision of the Prison Litigation Reform Act, barring a prisoner from proceeding in a federal civil rights lawsuit as a pauper after three prior lawsuits have been dismissed as frivolous, malicious, of failing to state a claim, applies to lawsuits filed by prisoners while incarcerated, even if they are later released. Additionally, a court can rely on the docket sheet entries of prior dismissals to determine whether the prisoner has "strikes," and the court had no obligation to examine the actual orders of dismissal. The three strikes rule is not an affirmative defense that has to be raised in the defendant's pleadings, and the court can therefore apply the requirement itself. The plaintiff prisoner, who claimed he was assaulted while incarcerated and denied medical care for his injuries, was not entitled to an exception to the rule, as he was not in imminent danger of serious harm when he filed his lawsuit. Harris v. City of New York, #09-0081, 2010 U.S. App. Lexis 11128 (2nd Cir.).
     A prisoner who had three prior strikes was barred from proceeding as a pauper under the "three strikes" provision of the Prison Litigation Reform Act when he could not show that he was in imminent danger of serious physical harm. The appeals court applied this rule to a federal civil rights lawsuit that the prisoner filed while incarcerated claiming that various defendants conspired to violate his rights in connection with a prior civil suit he filed against his former employer, and in connection with his arrest and conviction for indecent behavior with a juvenile. Lyles v. Lemmon, #10-30276, 2010 U.S. App. Lexis 26152 (Unpub. 5th Cir.).
      A prisoner was barred, under the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915, from proceeding as a pauper with his lawsuit claiming that guards threatened his life, tampered with his food, denied him medical treatment, heat, and running water, and put feces and urine in his cell when he was housed in quarantine. The prisoner also alleged that prison officials encouraged other prisoners to attack him. The plaintiff brought three or more prior lawsuits that were dismissed as frivolous, and he did not qualify for an exception to the "three strikes" rule, since he was not facing an imminent danger of serious physical injury. The appeals court found that the prisoner engaged in a pattern of repeatedly filing frivolous lawsuits and repeatedly claiming the "imminent danger" exception to try to evade the "three strikes" rule. Brown v. City of Philadelphia, #08-2419, 2009 U.S. App. Lexis 10790 (3rd Cir.).
    A lawsuit by a prisoner dismissed for failure to state a claim and/or for frivolousness prior to the 1996 enactment of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321, counted as a "strike" for purposes of the "three-strikes" rule in 28 U.S.C Sec. 1915(g) of the Act. As the prisoner therefore had more than three "strikes," he was barred from proceeding as a pauper (without paying filing fees). Additionally, his claims did not fall within the exception to the three strikes rule for claims involving an imminent risk of serious physical danger. The prisoner, therefore, was required to pay a $350 filing fee to proceed with his lawsuit. McGee v. Maki, Case No. 2:08-cv-204, 2008 U.S. Dist. Lexis 90589 (W.D. Mich.).
     A prisoner was barred from proceeding as a pauper in his lawsuit claiming that he was illegally housed in administrative segregation, when he had previously had three lawsuits dismissed as frivolous or for failure to state a claim. A prior lawsuit challenging the banning of tobacco as a civil rights violation counted as a "strike," since a later lawsuit found to have possible merit was not identical, instead revolving around the ban of snuff and similar tobacco substitutes. Larson v. Gonzales, CV F 08 0740, 2008 U.S. Dist. Lexis 81555 (E.D. Calif.).
     A prisoner's lawsuit was properly dismissed under the "three strikes" rule provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. Sec. 1915(g), as he had three-strikes from previous litigation and failed to show that he was in "imminent danger" simply because he was on a "food strike." Any threat of "imminent danger" came from his own decision to cease eating and not from any outside source. The court also noted that the prisoner, in each of three prior lawsuits he filed since January of 2008, threatened in connection with each one to go on a food strike to object to his detention. His lawsuits claimed that he was illegally detained and had never been convicted or sentenced. In Re: Whitfield, Misc. No. C-08-021, 2008 U.S. Dist. Lexis 25044 (S.D. Tex.).
     While four prior lawsuits filed by the plaintiff prisoner had been dismissed, two of them were dismissed on the basis that he had failed to adequately affirmatively state exhaustion of remedies in his complaints, a requirement that the court later eliminated. Those two dismissals, therefore, were not for frivolous or malicious litigation or failure to state a claim, and did not count as "strikes" for purposes of the rule. A dismissal of the prisoner's lawsuit for failure to protect him from assault by another inmate while in protective custody was therefore overturned. Feathers v. McFaul, No. 07-3930, 2008 U.S. App. Lexis 8909 (6th Cir.).
     When a prisoner's lawsuit includes a number of claims, and one or some claims are dismissed for failure to state a claim, but other claims are allowed to proceed, the partial dismissal of the complaint does not constitute a "strike" for purposes of the "three strikes" provision of 28 U.S.C. Sec. 1915(g). Imposing such a "strike" while allowing the prisoner to proceed with other claims in the complaint would not further the purpose of the statute to deter frivolous lawsuits. Tafari v. Hues, No. 04-Civ-5564, 2008 U.S. Dist. Lexis 17042 (S.D.N.Y.).
     Prisoner was improperly denied the right to proceed with a federal civil rights lawsuit as a pauper on the basis that he had "three strikes" under 28 U.S.C. Sec. 1915(g) and his lawsuit did not allege that he was in "imminent danger" of physical harm. The appeals court noted, first, that all of the strikes were dismissals of lawsuits that had not yet been entered when he filed his immediate lawsuit, and that the inmate had appealed each of the dismissals and those appeals were not completed at the time he filed this lawsuit. Dismissal of a lawsuit by a trial court cannot count as a "strike" for purposes of the statute until appeal rights on that dismissal have been exhausted. Further, the question of whether or not a prisoner has "three strikes" for purposes of the statute must be determined at the time he files his lawsuit. Nicholas v. Corbett, No. 07-2011, 2007 U.S. App. Lexis 26184 (3rd Cir.).
     In an opinion on a previously unresolved issue, a federal appeals court ruled that the dismissal of a lawsuit in which some claims were dismissed for failure to state a claim and other claims were dismissed for failure to exhaust available administrative remedies, the dismissal counts as a strike for purposes of the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g). Under that rule, a prisoner with three strikes is denied the right to proceed as a pauper with further lawsuits, except in cases presenting a danger of imminent physical harm. The appeals court found that the whole purpose of the "three strikes" rule would be undermined if prisoners could avoid getting a "strike" simply by adding "unexhausted" claims to a lawsuit containing claims that would otherwise to summarily dismissed on the merits. Pointer v. Wilkinson, No. 06-3393, 2007 U.S. App. Lexis 21250 (6th Cir.).
     Even though the dismissal of the plaintiff prisoner's prior five appeals, on the basis of his failure to prosecute them, were not "strikes" for purposes of the Prison Litigation Reform Act's "three strikes rule," 28 U.S.C. § 1915(g), the court could properly deny his request that he be allowed to proceed as a pauper on another appeal, on the basis of its supervisory discretion. Butler v. Dep't of Justice, No. 05-5171, 2007 U.S. App. Lexis 15151 (D.C. Cir.).
     A prisoner who had three or more previous "strikes" under the "three strikes rule" of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), should still be allowed to proceed as a pauper in his immediate lawsuit without the payment of a $350 fee, based on an exception for cases involving "imminent danger of serious physical injury." The plaintiff's claim that he was being subjected to the danger of exposure to communicable diseases because of a facility's housing practices and failure to screen prisoners for such diseases fell within this exception to the "three strikes rule." Andrews v. Cervantes, No. 04-17459, 2007 U.S. App. Lexis 15986 (9th Cir.).
     Federal court rejects prisoner's argument that he did not have three strikes against him under the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), based on the claim that at the time he filed one of his prior civil lawsuits against a county jail, he was released overnight and then rearrested the following day. Even if he was briefly released, this did not change the fact that he was in custody at the time the lawsuit in question was filed, so that it could properly be counted as one of his three strikes. Buford v. Mounts, No. CV-F-02-6187, 2007 U.S. Dist. Lexis 41648 (E.D. Cal.).
     Prisoner who claimed that defendant prison employees had threatened to hit him in the mouth failed to show that he was in imminent danger of serious physical injury, in the absence of which he was properly denied the right to proceed as a pauper in his federal civil rights lawsuit, based on the "three strikes rule" of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) and a finding that he had, on three or more occasions, while incarcerated, brought lawsuits or appeals in U.S. courts that were dismissed as frivolous, malicious, or for failure to state a claim on which relief could be granted. Bozeman v. Johnson, No. 2:07-CV-290, 2007 U.S. Dist. Lexis 26590 (M.D. Ala.), magistrate's recommendation adopted by 2007 U.S. Dist. Lexis 32536 (M.D. Ala.).
     Prisoner was improperly denied permission to proceed as a pauper under the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) when one of the "strikes" relied on by the trial court was the dismissal of a lawsuit which was still then on appeal. Such a dismissal does not count as a "strike" under the statute until the prisoner either waives or exhausts his appeals rights. Further, the fact that an appeals court subsequently did uphold the dismissal of the prior lawsuit did not alter the result, since the statute only conditions the right to bring the lawsuit as a pauper on the number of "strikes" existing at the time the lawsuit is initially filed, and does not authorize a court to revoke status as a pauper if a plaintiff prisoner subsequently receives an additional "strike" Lopez v. U.S. Dept. of Justice, No. 06-2409, 2007 U.S. App. Lexis 9403 (3rd Cir.).
     While a prisoner had previously had more than three lawsuits dismissed as frivolous, malicious, or failing to state a claim for which relief had been granted, he was not barred under 28 U.S.C. Sec. 1915(g) from proceeding as a pauper with his federal civil rights lawsuit, when his complaint and attached materials claimed that he was facing an imminent danger of serious physical harm. Claiborne v. Director of Corrections, No. 06-15996, 2007 U.S. App. Lexis 1534 (9th Cir.). [N/R]
     A resident of a privately operated halfway house was confined there for a criminal conviction, and therefore was a "prisoner" for purposes of the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), denying prisoners the right to proceed as paupers with federal civil rights claims (except for claims involving imminent threats of physical harm) after three of their lawsuits are dismissed as frivolous, brought for an improper purposes, or for failure to state a claim. In this case, the plaintiff clearly had three such "strikes." Jackson v. Johnson, No. 04-10419, 2007 U.S. App. Lexis 92 (5th Cir.). [N/R]
     Dismissal of an appeal on the basis of the filing of a premature notice of appeal did not constitute a "strike" for purposes of the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), since such a dismissal was based on a curable procedural flaw, unlike a dismissal for making a frivolous claim or for failure to state a claim on which relief can be granted. Tafari v. Hues, No. 05-0958, 2007 U.S. App. Lexis 190 (2nd Cir.). [N/R]
     Federal trial court improperly dismissed a prisoner's lawsuit under the "three strikes" rule in 28 U.S.C. Sec. 1915(g). Prior dismissals of lawsuits did not count as "strikes" under the rule when the prisoner had not yet waived or exhausted his appeals in those prior cases. Campbell v. Davenport Police Dep't, No. 06-3143 2006 U.S. App. Lexis 32030 (8th Cir.). [N/R]
     Despite the fact that he had many more than three prior "strikes" against him, i.e., lawsuits dismissed as frivolous or for failure to state a claim, a prisoner was entitled to pursue as a pauper his lawsuit claiming that he had been denied proper treatment for both Hepatitis C and prostate cancer, since these claims constituted an allegation of imminent danger constituting an exception to the "three strikes" rule of 28 U.S.C. Sec. 1915(g). Ibrahim v. District of Columbia, No. 05-5370, 2006 U.S. App. Lexis 26676 (D.C. Cir.). [N/R]
     Federal appeals court could not presume that a prisoner faced a threat of imminent death or serious physical injury merely because he claimed that he had been denied his heart medication, when he failed to describe either the medical condition resulting in the prescription or that he suffered a physical injury after he did not receive the medication. As a result, the court upheld the trial judge's decision denying the prisoner, who had previously had "three strikes," permission to proceed as a pauper in his federal civil rights lawsuit. Skillern v. Deputy Warden Paul, No. 06-11440, 2006 U.S. App. Lexis 24841 (11th Cir.). [N/R]
   The "routine" dismissal of a lawsuit over prison conditions because of the failure to exhaust available administrative remedies is not a "strike" for purposes of the Prison Litigation Reform Act's "three strikes" rule. Green v. Young, No. 04-7252, 2006 U.S. App. Lexis 18685 (4th Cir.). [2006 JB Sep]
     Civilly committed Illinois sex offender is subject to the "three strikes rule" of the Prison Litigation Reform Act (PLRA), 28 U.S.C. Sec. 1915(g), barring him from filing further civil rights lawsuits as a pauper after three such lawsuits have been found to be frivolous. Additionally, he could not sue for damages for his allegedly unconstitutional confinement when his commitment had not been previously invalidated. Ring v. Knecht, No. 04-1487, 130 Fed. Appx. 51 (7th Cir. 2005). [N/R]
     Prisoner's claim that he was sprayed with a chemical agent that damaged his lungs was insufficient to show an imminent danger of serious physical injury sufficient to allow him to proceed as a pauper with his federal civil rights lawsuit despite his prior failure, as a frequent filer of civil rights lawsuit, to make progress towards the repayment of unpaid filing fees from previously filed lawsuits. The complaint was dismissed on the basis of the three strikes rule, as required by 28 U.S.C. Sec. 1915(g), barring a prisoner from proceeding as a pauper after having three lawsuits dismissed as frivolous, except in cases of a risk of imminent physical harm. Because four months had elapsed between the alleged injury and the filing of the lawsuit, the prisoner could not show a risk of imminent danger. Cosby v. Gray, 124 Fed. Appx. 595 (10th Cir. 2005). [N/R]
     Mere fact that twenty-two prior actions filed by prisoner had been dismissed did not suffice to show that he had suffered "three strikes" under the Prison Litigation Reform Act barring him from filing further lawsuits as a pauper unless he was in imminent danger of physical harm. Burden was on the defendants to show that at least three of these cases had been dismissed as frivolous, malicious, or for failure to state an assertable claim. Dismissed habeas petitions and actions filed while the plaintiff was in the custody of immigration authorities without facing criminal charges did not count as "strikes" under the rule. Andrews v. King, No. 02-17440, 398 F.3d 1113 (9th Cir. 2005). [2005 JB May]
     Man held under Illinois sexually dangerous persons statute, under which criminal proceedings are stayed for the purpose of treatment for mental illness was a pretrial detainee properly classified as a "prisoner" for purposes of the exhaustion of remedies requirement and "three strikes" rule of the Prison Litigation Reform Act. His lawsuit asserting a claim for alleged inadequate access to prison law library was therefore properly dismissed for failure to exhaust available administrative remedies. Kalinowski v. Bond, No. 02-3273, 358 F.3d 978 (7th Cir.), cert, denied, 124 S. Ct. 2843 (2004). [2004 JB Dec]
     Prisoner who had previous federal civil rights claims dismissed had to supply court with copies of dismissal orders before filing an amended complaint in his current lawsuit, so it could be determined if they were judged to be frivolous, malicious, or to have failed to state a claim, and therefore to bar him from proceeding as a pauper under the "three strikes" provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. Sec. 1915(a). Abreu v. Ramirez, 284 F. Supp. 2d 1250 (C.D. Cal. 2003). [N/R]
     Prisoner's federal civil rights lawsuit against prison officials claiming that excessive force was used against him could not be brought by him as a pauper because of the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) even if the dismissals of his earlier cases as frivolous or failing to state a claim took place before the effective date of the statute, when at least six previous lawsuits brought by the prisoner were dismissed in this manner, and he failed to claim that he was in any imminent danger of serious physical harm when he filed the latest lawsuit. Wallace v. Franklin, No. 02-4308, 66 Fed. Appx. 546 (6th Cir. 2003). [N/R]
     Prisoner's complaint about being compelled to work in cold weather without warm clothing, or in hot, humid weather despite his high blood pressure did not qualify as a claim of imminent danger of serious physical harm coming under an exception to the "three strikes" rule of the Prison Litigation Reform Act barring access to courts as a pauper following the filing of three or more frivolous lawsuits. Martin v. Shelton, No. 02-2770, 319 F.3d 1048 (8th Cir. 2003). [2003 JB Jun]
     Trial judge was not bound by the ruling of another judgment, in another case involving the same plaintiff prisoner, that a prior case with some claims dismissed as frivolous and others dismissed for failure to exhaust administrative remedies did not count as a "strike" for purposes of the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) prohibiting a prisoner for proceeding as a pauper following three prior frivolous claims. Judge rules that it did, in fact, constitute a "strike." Clemons v. Young, 240 F. Supp. 2d 639 (E.D. Mich. 2003). [N/R]
     Prisoner who had filed over 200 prior civil actions in federal courts, many of which were dismissed as frivolous, was barred by the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), from proceeding as a pauper in his most recent filing when he could not show that he was in "imminent danger of physical injury" at the time the complaint was filed, which is the sole exception to the "three strikes" rule. Court notes that allegations of past physical danger are insufficient to invoke the exception. Judd v. Furgeson, 239 F. Supp. 2d 442 (D.N.J. 2002). [N/R]
     Provisions of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), prohibiting prisoners with three "strikes" (three lawsuits previously dismissed as frivolous or failing to state a cause of action) from proceeding as a pauper with further litigation unless a prisoner is at imminent risk of serious harm, was not "jurisdictional" in nature, but rather required the payment of filing fees before the court can review the merits of the "three-strikes" prisoner's claims. Further, the appeals court had "some discretion" to hear an appeal without the payment of the fees. In this case, however, the court would dismiss the prisoner's complaint for failure to prosecute if he did not pay the filing fees. Dubic v. Johnson, #01-5122, 314 F.3d 1205 (10th Cir. 2003). [N/R]
     Prisoner who had filed three previous lawsuits dismissed as frivolous could not pursue additional litigation as a pauper, but instead had to pay the required filing fee before proceeding with his lawsuit claiming that his rights were violated when a correctional officer asked him, in front of other prisoners, to supply the names of inmates engaged in selling drugs at the prison. Butler v. U.S., #01-6447, 53 Fed. Appx. 748 (6th Cir. 2002). [N/R]
     Prisoner's claim that he is currently being denied medical care for acid reflux and painful cysts on his vocal cords could pursue his lawsuit without prepaying a filing fee, despite having three previous lawsuits which were dismissed for failure to state a claim, under an "imminent danger" exception. State prison non-medical personnel, however, were not subject to liability for deliberate indifference to his serious medical needs when they relied on the medical judgment of prison medical personnel in denying the prisoner's medical grievances. Bond v. Aguinaldo, 228 F. Supp. 2d 918 (N.D. Ill. 2002). [2003 JB Mar.]
     A federal prisoner's prior frivolous habeas petition under 28 U.S.C. Sec. 2241 challenging the conditions of his confinement counted as a strike, under the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) precluding an inmate from bringing further lawsuits or appeals as a pauper after three prior frivolous actions. Appeals court denies prisoner's motions to proceed as a pauper in appeals of eight separately dismissed federal cases. Owens-El v. United States, Nos. 02-1281, etc. 49 Fed. Appx. 247 (10th Cir. 2002).[N/R]
     296:120 Man confined in a state mental hospital based on a finding of not guilty by reason of insanity was not a "prisoner" for purposes of the Prison Litigation Reform Act's filing fee or "three strikes" rules; no rule prohibited him from pursuing federal civil rights claim himself rather than through his court-appointed guardian. Kolocotronis v. Morgan, No. 01-1308WM, 247 F.3d 726 (8th Cir. 2001).
     284:124 Prisoners' lawsuits dismissed as "frivolous" or malicious, or for failure to state a claim, prior to effective date of Prison Litigation Reform Act still counted as "strikes" for purposes of the Act's "three strikes" rule prohibiting prisoners from pursuing claims as "paupers" after three such dismissals, in the absence of a claim of "imminent danger of serious physical injury." Ibrahim, In Re., v. District of Columbia, #96-7069, 208 F.3d 1032 (D.C. Cir. 2000).
     285:137 Federal appeals court holds that frivolous lawsuits filed prior to the effective date of the Prison Litigation Reform Act's "three strikes" rule could count as "strikes" for purposes of provision barring prisoner from pursuing a further federal civil rights case as a "pauper" without paying the full filing fee in the absence of a threat of imminent physical danger; trial court rejected prisoner's claim that he was facing an imminent physical peril from an alleged "conspiracy" of correctional officials to injure or kill him. Welch v. Galie, #99-0229, 207 F.3d 130 (2nd Cir. 2000).
     [N/R] Prisoner's prior habeas corpus action was not a "civil action" for purposes of the PLRA's "three- strikes" rule. Jennings v. Natrona County Detention Center Medical Facility, No. 98-8032, 175 F.3d 775 (10th Cir. 1999).
     267:41 Prisoner who asserted that he had been assaulted twice in the past by the same prisoner stated sufficient claim for "imminent danger" to invoke exception to Prison Litigation Reform Act section prohibiting him from proceeding as pauper in federal civil rights lawsuit because he had filed three previous frivolous lawsuits. Ashley v. Dilworth, #97-4082, 147 F.3d 715 (8th Cir. 1998).
     267:42 Texas prisoner complaining that body cavity searches were used to sexually harass him could not proceed as pauper in lawsuit or appeal of dismissal when he previously filed four frivolous lawsuits and did not allege imminent danger of serious physical harm at time of filing lawsuit or appeal. Banos v. O'Guin, #97-40354, 144 F.3d 883 (5th Cir. 1998).
     268:56 Prisoner's claim that he was forced to continuously breath dust and lint particles from a vent in his cell could be sufficient to state a "imminent danger of serious physical injury" triggering an exception to the Prison Litigation Reform Act's bar on him proceeding as a pauper in a federal civil rights lawsuit after having three prior lawsuits dismissed as frivolous. Gibbs v. Cross, #96-3618, 160 F. 3d 962 (3rd Cir. 1998).
     268:58 Verbal threat by correctional officer to have prisoner killed could be sufficient, under certain circumstances, to state a claim for excessive use of force. Chandler v. D.C. Dept. of Corrections, #96-5166, 145 F.3d 1355 (D.C. Cir. 1998).
     269:72 Federal appeals court rules that "three strikes" rule, barring prisoners from proceeding as paupers in lawsuits filed after three prior such suits were dismissed as frivolous, can not be applied retroactively to revoke pauper status already granted prior to effective date of rule. Gibbs v. Ryan, #96-3528, 160 F.3d 160 (3rd Cir. 1998).
     [N/R] Trial court erred in enjoining application of Prison Litigation Reform Act to prisoner as a sanction for defense attorney's alleged frivolous argument; further, court determined that attorney's arguments were not frivolous. Sargent v. Saunders, #96-7113, 136 F.3d 349 (4th Cir. 1998).
     [N/R] Further proceedings ordered to address apparent incongruity between dismissal of lawsuit by trial court and that same court's decision to allow the prisoner to proceed as a pauper on appeal. Choyce v. Dominguez, 397- 41292, 160 F.3d 1068 (5th Cir. 1998).
     [N/R] "Three strikes" rule could be applied to foreclose prisoner's federal civil rights claim based on pre- Prison Reform Litigation Act dismissals of lawsuits as frivolous. Wilson v. Sanford, No. 96-3023, 96-4323, 148 F.3d 596 (6th Cir. 1998).
     255:39 Prisoner who had previously had three lawsuits dismissed as frivolous could still proceed with new lawsuit, despite "three strikes" rule of Prison Litigation Reform Act, when new lawsuit claimed that prison librarian put him in imminent threat of serious physical injury by allowing inmate law clerk to read his legal papers indicating that he was a government informant. Gibbs v. Roman, 116 F.3d 83 (3rd Cir. 1997). 253:10 Prison Litigation Reform Act provision denying prisoners the right to file civil lawsuits as paupers after having three prior suits dismissed as frivolous or malicious is upheld. Carson v. Johnson, 112 F.3d 818 (5th Cir. 1997).
     258:87 Federal appeals court rules that dismissal of a lawsuit as frivolous, or dismissal of an appeal as frivolous, will each count as one "strike" against a prisoner under the "three strikes" rule of the Prison Litigation Reform Act, even if the prisoner paid a full filing fee for the lawsuit or appeal. Duvall v. Miller, 122 F.3d 489 (7th Cir. 1997).
     [N/R] Prisoner who filed appeal after trial court certified that appeal would not be taken in good faith could still proceed with appeal, but must pay full amount of appellate filing fee, either in installments or else pay the full amount "up front" if he has acquired "three strikes" before through frivolous lawsuits or appeals. Henderson v. Norris, 129 F.3d 481 (8th Cir. 1997).
     238:147 Federal Prison Litigation Reform Act becomes law, makes numerous changes in prison litigation, including scope of injunctive orders, standards for termination of injunctive orders, amount of attorneys' fees, standard for prisoner release orders in overcrowding cases, prisoner payment of filing fees and court costs, barring inmates who repetitively file frivolous suits from further filings, no awards for mental/emotional distress in the absence of physical injury, and revocation of federal prisoner's good time credits if they file malicious lawsuits or testify falsely, among other highlights.

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