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United States District Court, Northern District of Illinois, Eastern Division

April 24, 2003


The opinion of the court was delivered by: Suzanne B. Conlon, United States District Court


Tyrone Calhoun, a prisoner in the custody of the Illinois Department of Corrections, brought this suit under 42 U.S.C. § 1983 complaining of an intentionally humiliating strip search conducted at Stateville Correctional Center on May 10, 1996, only weeks after the Prison Litigation Reform Act (PLRA) "ushered in a new and far more restrictive era for prisoner litigation." Walker v. O'Brien, 216 F.3d 626, 628 (7th Cir. 2000). This suit has twice been derailed by the PLRA, and this may be the third time.

History of Calhoun's Claim

Calhoun initially raised the claim asserted in this action in Calhoun v. DeTella, No. 96 C 3564 (N.D. Ill.) ("Calhoun I"), filed June 12, 1996, a month after the alleged incident took place. Calhoun consented to have a magistrate judge conduct the initial review required by the PLRA, 28 U.S.C. § 1915A, and after a brief hearing at Stateville, Magistrate Judge Guzman entered a short opinion on February 18, 1987, granting Calhoun leave to proceed in forma pauperis.*fn1 Magistrate Judge Guzman noted that because Calhoun's complaint alleged that the strip search caused him psychological injury with no accompanying physical injury, his claim appeared to be barred by a provision of the PLRA providing that "[n]o Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). Nevertheless, believing this provision might not survive an equal-protection challenge, Magistrate Guzman allowed the suit to proceed. Calhoun I, 1997 WL 75658 (Feb. 18, 1997).

The defendants filed a motion to dismiss, invoking another provision of the PLRA requiring prisoners to exhaust available administrative remedies before bringing suit under federal law. 42 U.S.C. § 1997e(a), which Calhoun clearly had not done. On June 9, 1997, this court granted defendants' motion and dismissed the suit without prejudice.

On March 31, 1998, Calhoun filed the present suit based on the same incident, but this time alleging that he had exhausted administrative remedies.*fn2 While this cured the defect leading to the dismissal of the prior suit, it appeared that the PLRA placed yet another obstacle in Calhoun's path. While Calhoun had been exhausting administrative remedies, the Court of Appeals resolved the question raised in Magistrate Judge Guzman's order, holding that the physical-injury requirement of 42 U.S.C. § 1997e(e) is constitutional and does not violate the Equal Protection Clause. Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir. 1997).

When this court reviewed Calhoun's new complaint as required by 28 U.S.C. § 1915A, it appeared that the complaint, seeking compensatory and punitive damages for a purely emotional injury, fell squarely within § 1997e(e). The court granted Calhoun leave to proceed in forma pauperis, assessed an initial payment of the filing fee as required by 28 U.S.C. § 1915 (b), and entered judgment dismissing this suit on May 29, 1998.

Calhoun moved for reconsideration, pointing out that § 1997e(e) did not bar injunctive or declaratory relief. The court denied the motion, acknowledging that although injunctive or declaratory relief might be available in an appropriate case, allegations of a single incident nearly two years before the complaint was filed did not show "some cognizable danger of recurrent violation," as required for injunctive relief, Wilk v. American Medical Ass'n, 895 F.2d 352, 367 (7th Cir. 1990), nor even an existing controversy "of sufficient immediacy and reality to warrant issuance of a declaratory judgment." Trippe Mfg. Co. v. American Power Conversion Corp., 46 F.3d 624, 627 (7th Cir. 1995) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).

On July 6, 1998, Calhoun filed a notice of appeal and a motion for leave to proceed on appeal in forma pauperis. After initially denying Calhoun's motion because he had failed to submit a current trust fund account statement as required by 28 U.S.C. § 1915 (a)(2), on December 1, 1988, the court denied leave to appeal in forma pauperis because, in addition to the dismissal in this case, Calhoun had accrued three "strikes" under 28 U.S.C. § 1915 (g), i.e., three suits dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted.*fn3 The court listed as "strikes" Calhoun v. Allen, No. 95 C 6092, dismissed by this court as frivolous on November 28, 1995, pursuant to former 28 U.S.C. § 1915 (d),*fn4 Calhoun v. Allen, No. 96 C 2864, dismissed by this court on October 18, 1996, pursuant to 28 U.S.C. § 1915A, and Calhoun I, this court's dismissal without prejudice of the claim asserted in this suit. Calhoun did not challenge his eligibility to appeal in forma pauperis by filing a motion with the Court of Appeals under Rule 24(a)(5), F.R.A.P., but paid the appellate filing fee.

Four and a half years later, on February 13, 2003, the Court of Appeals affirmed this court's judgment in part, reversed in part, and remanded for further proceedings. Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003). The Court of Appeals held that while strip searches are unpleasant and humiliating, they do not in themselves violate the Eighth Amendment. Nevertheless, "wanton infliction of psychological pain" does violate the Eighth Amendment, even in the absence of physical injury. Id. at 939. By alleging that the defendants "sexually harassed him through behavior unrelated to legitimate prison needs," and "in a manner designed to demean and humiliate Calhoun," Calhoun had stated an Eighth Amendment claim. Id. at 940.

Although noting that Calhoun's transfer to another institution mooted any claim for injunctive or declaratory relief, id. at 939, the Court of Appeals held that Calhoun could seek monetary damages. Although 42 U.S.C. § 1997e(e) prevents a prisoner-plaintiff from seeking compensatory damages for deliberate infliction of emotional suffering in the absence of physical injury, psychological torture in violation of the Eighth Amendment would permit recovery of nominal damages, and, in appropriate cases, punitive damages as well. Id. at 940-42.

Calhoun's In Forma Pauperis Status

This court accordingly reinstates this action in accordance with the mandate of the Court of Appeals. Having regained jurisdiction from the Court of Appeals, the court must face a question it lacked jurisdiction to decide while the appeal was pending: whether the court erred in granting Calhoun leave to proceed in forma pauperis at the commencement of this action. Calhoun was not permitted to proceed in forma pauperis on appeal because he had accrued three "strikes" under 28 U.S.C. § 1915 (g), yet each of the dismissals cited by this court had been entered before this suit was filed.

In permitting Calhoun to proceed in forma pauperis in May of 1998, the court probably did not count the prior dismissal in Calhoun v. Allen, No. 95 C 6092, because it predated the effective date of the PLRA, overlooking the Seventh Circuit's January 7, 1998, opinion in Lucien v. Jockisch, 133 F.3d 464 (7th Cir. 1998), assuming that pre-PLRA dismissals qualified as "strikes" under § 1915(g).*fn5 When Calhoun sought to proceed in forma pauperis on appeal, the Seventh Circuit had issued its opinion in Evans v. Illinois Dept. of Corrections, 150 F.3d 810, 811 (7th Cir. 1998), directing district courts to count pre-PLRA dismissals as strikes, and the court counted three.

Leave to proceed in forma pauperis may be revoked when it was granted in error, even though the plaintiff did not mislead the court. See Moore v. Doan, No. 98 C 2307, 1998 WL 887089 (N.D. Ill. 1998) (Lindberg, J.); Turner-El v. Washington, No. 96 C 6323, 1998 WL 566880 (N.D. Ill. 1998) (Moran, J.). When Calhoun was denied leave to proceed in forma pauperis on appeal, jurisdiction had passed to the Court of Appeals and this court could not revisit its order granting Calhoun leave to proceed in forma pauperis in the district court. Because the two orders are inconsistent, the court does so now.

Counting Calhoun I As A Strike

Calhoun's ability to proceed in forma pauperis on remand is not entirely settled by the court's December 1, 1998 order. Subsequent caselaw raises the question whether Calhoun I, dismissed on defendants' motion without prejudice for failure to exhaust administrative remedies, was properly counted a strike. The Eleventh Circuit has held that dismissals for failure to exhaust administrative remedies count as strikes, Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998), but the Second Circuit has stated that where the defect is remediable (as it apparently was here), a dismissal for failure to exhaust administrative remedies is not a strike. Snider v. Melindez, 199 F.3d 108, 110-12 (2d Cir. 1999).

The Seventh Circuit has not ruled whether a dismissal without prejudice for failure to exhaust administrative remedies counts as a strike. In an unpublished opinion, Byrd v. Sitki, 14 Fed.Appx. 701, 2001 WL 867874 (7th Cir. 2001), the Seventh Circuit affirmed the district court's dismissal of a prisoner's suit for failure to exhaust administrative remedies, but modified the judgment to the extent it had held that the plaintiff had incurred a strike.

The plaintiff had argued that exhaustion was not required because he sought only monetary damages and such relief was unavailable through the grievance procedure. The Seventh Circuit rejected that argument, citing Booth v. Churner, 532 U.S. 731 (2001), but stated that the dismissal should not count as a strike because the Supreme Court had granted certiorari in Booth to decide whether exhaustion of administrative remedies was required in such cases. The court did not elaborate on its rationale (the unpublished order comprises three paragraphs), but it appears that the panel believed that when a case is dismissed on the basis of a legal rule that was unsettled at the time, the dismissal should not count as a strike although the district court's ruling ultimately proved correct.

Calhoun I stands on the same footing as Byrd, in that Calhoun sought damages for a single completed act. Even though Calhoun asked for other relief as well, dismissal of the entire suit would not have been justified if the claim for damages did not require exhaustion. At the time Calhoun I was dismissed, it was arguable whether a plaintiff who sought damages for a completed act was required to exhaust administrative remedies when they could not provide monetary compensation. A number of judges of this court took this position,*fn6 and it found support in dicta in Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 538 (7th Cir. 1999). See also Massey v. Helman, 196 F.3d 727, 734 (7th Cir. 2000).

Nevertheless, as an unpublished opinion Byrd is not precedential, and this court respectfully disagrees with its interpretation of § 1915(g). A dismissal for failure to state a claim should count as a strike, even though the complaint might have stated a claim under a plausible interpretation of the law consistent with existing precedents. Such a complaint is not "frivolous," see Neitzke v. Williams, 490 U.S. 319, 328 (1989), but strikes under § 1915(g) are not limited to frivolous suits. By unambiguously requiring that suits dismissed for failure to state a claim be counted as strikes, Congress clearly intended to include suits that would not be regarded as frivolous.

The result may be harsh, but "[c]ourts may not ignore the valid dictates of Congress and may not read exceptions into unambiguous legislation." McCoy v. Gilbert, 270 F.3d 503, 513 (7th Cir. 2001). The Seventh Circuit has held that when it is apparent from the complaint that the plaintiff has not exhausted available administrative remedies, the suit is properly dismissed without prejudice for failure to state a claim. Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000). The dismissal of Calhoun I was properly counted as a strike.

Calhoun's Frivolous Appeals

Even if Calhoun I was not a strike, leaving only two strikes in this court, § 1915(g) counts frivolous appeals as well as frivolous suits. At the time this suit was filed, Calhoun had brought eleven appeals, three arising from habeas corpus petitions and eight appeals in civil cases.*fn7 of the latter, six had been dismissed by the Seventh Circuit and the remaining two were dismissed subsequently.*fn8

None of these dismissals resulted in an opinion designating the appeal as a strike under § 1915(g). Nevertheless, the Seventh Circuit has stated that whether the court entering a dismissal calls it a strike is merely a "housekeeping matter"; it is for the court granting or denying leave to proceed in forma pauperis to determine whether a dismissal counts as a strike under § 1915(g). Gleash v. Yuswak, 308 F.3d 758, 761-62 (7th Cir. 2002). This court will accordingly examine Calhoun's dismissed appeals to determine whether any were dismissed on the ground that the appeal was frivolous.*fn9 This court will not second-guess the Court of Appeals' conclusion, but will give effect to the substance of the court's ruling.*fn10 Where the Court of Appeals treated an appeal as frivolous, i.e., having no basis in law, this court will treat it as a strike.

The court identifies at least two of Calhoun's appeals that should count as strikes. Calhoun v. Jockisch, No. 94-1709, appealed Judge McDade's March 1, 1994 order in Calhoun v. Jockisch, No. 94 CV 1013 (C.D. Ill.), denying reconsideration of Magistrate Judge Kauffman's order directing Calhoun to pay a partial filing fee on pain of dismissal. The Court of Appeals denied Calhoun leave to proceed in forma pauperis on appeal and summarily affirmed on March 30, 1995.*fn11 Summary affirmance indicates that the Court of Appeals viewed the appeal as frivolous, presenting no issues meriting discussion or briefing.

Calhoun v. Huskisson, No. 95-1765, was an appeal from summary judgment entered March 13, 1995, by Judge Mihm of the Central District of Illinois in Calhoun v. Huskisson, No. 93-CV-1530. On April 6, 1995, Judge Mihm denied Calhoun's motion for leave to appeal in forma pauperis and certified that the appeal was frivolous.

Judge Mihm's certification that the appeal was frivolous prevented Calhoun from proceeding without prepayment of the appellate docketing fee, unless the Seventh Circuit disagreed with that determination. Under 28 U.S.C. § 1915 (a) (now § 1915(a)(3)), an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. In this context the question of "good faith" is objective, not subjective; the question is whether the appellant has raised any non-frivolous issue. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000); Tolefree v. Cudahy, 49 F.3d 1243 (7th Cir. 1995); see Coppedge v. United States, 369 U.S. 438, 444-46 (1962).*fn12 District courts are directed to certify frivolous appeals as not having been brought in good faith. Moran v. Sondalle, 218 F.3d 647, 650 (7th Cir. 2000); Tolefree, 49 F.3d at 1244.

Both before and after the PLRA, leave to proceed in forma pauperis in district courts and Courts of Appeals was governed by 28 U.S.C. § 1915. At the time of Calhoun's appeal, prior to the PLRA amendments, § 1915(d) provided that "[t]he court . . . may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." Both before and after the PLRA, a district court's determination that an appeal was frivolous and not in good faith was subject to de novo review. Pate v. Stevens, 163 F.3d 437, 438-39 (7th Cir. 1998) (citing Cruz v. Hauck, 404 U.S. 59, 62 (1971) (Douglas, J., concurring). The Seventh Circuit denied Calhoun's motion for leave to appeal in forma pauperis and summarily affirmed the district court's judgment on August 23, 1995. As this was an implicit determination that the appeal was frivolous, it also counts as a strike.


The court finds that when the complaint was filed Calhoun had accrued three strikes in this court and at least two strikes in the Court of Appeals. Calhoun should not have been permitted to proceed without prepayment, and must pay the $150.00 filing fee on or before May 23, 2003. If he fails to do so, this suit shall be dismissed.


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