Prisoner Only Has One Strike, Not Out Yet

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By Jordan S. Rubin

Federal courts need to decide for themselves whether a prisoner’s prior dismissed lawsuit counts as a “strike” under a federal law’s three-strikes-and-you’re-out policy, the U.S. Court of Appeals for the D.C. Circuit held.

And when a prisoner brings federal and state claims together, all of those claims need to be dismissed for them to be eligible to count as a strike ( Fourstar v. Garden City Grp., Inc. , 2017 BL 423850, D.C. Cir., No. 15-5049, 11/28/17 ).

The decision clarified the scope of the Prison Litigation Reform Act,

Under the PLRA, if a prisoner’s lawsuit is dismissed for failure to state a claim, or as frivolous or malicious, the prisoner earns a strike. If a prisoner gets three strikes, then he or she will ordinarily not be granted in forma pauperis status—granted to those who can’t afford court fees—to file a new lawsuit.

Here, the district court denied Victor Charles Fourstar Jr.'s in forma pauperis application and dismissed his suit because, it said, he had three strikes.

But the district court was wrong, the appeals court said in a Nov. 28 opinion by Judge Brett M. Kavanaugh.

Two of Fourstar’s previous suits weren’t really strikes, the court said.

In one of the previous cases, which contained state law claims, the district court in that case didn’t exercise supplemental jurisdiction over the state claims or dismiss them, it said. In the other, the court said it was a strike, and the district court here accepted that conclusion without analyzing the case for itself, it said.

Senior Judge Stephen F. Williams and Judge Patricia A. Millett joined the opinion.

Miller & Chevalier, Washington, represented Fourstar, who also presented his own pro se brief. The U.S. Attorney’s Office represented the government.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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