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[W] Turley v. Gaetz

October 14, 2010; withdrawn October 15, 2010

GREGORY J. TURLEY, PLAINTIFF-APPELLANT,
v.
DONALD GAETZ, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Illinois. No. 3:09-cv-00829-GPM-G. Patrick Murphy, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED MAY 26, 2010

Before RIPPLE, KANNE and SYKES, Circuit Judges.

Gregory Turley, an Illinois prisoner, filed a pro se lawsuit under 42 U.S.C. § 1983, claiming that the warden, a number of guards and other employees at Menard Correctional Center ("Menard") retaliated against him for litigation previously filed regarding his conditions of confinement. Mr. Turley moved to proceed in forma pauperis ("IFP"), but the district court concluded that he was ineligible due to the "three-strikes" rule of the Prison Litigation Reform Act of 1995 ("PLRA"), see 28 U.S.C. § 1915(g). Relying on our opinions in George v. Smith, 507 F.3d 605, 607-08 (7th Cir. 2007), and Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir. 2004), the district court reasoned that Mr. Turley had "struck out" because in each of his three prior lawsuits at least one claim had been dismissed for failure to state a claim although other claims had been permitted to go forward. The court also concluded that Mr. Turley was not in imminent danger of serious physical harm and, therefore, did not meet the one exception to the three-strikes rule. The court therefore dismissed the complaint but without prejudice so that Mr. Turley could refile upon prepayment of the full filing fee. Mr. Turley appeals. For the reasons set forth in this opinion, we reverse the judgment of the district court and remand with instructions to reconsider Mr. Turley's application to proceed IFP.

I. BACKGROUND

In his complaint, filed in October 2009, Mr. Turley contends that the defendants have worked together to punish him for filing grievances and lawsuits about the conditions of his confinement at Menard. He alleges that he has endured a range of retaliatory actions including physical assaults, threats, trumped-up disciplinary charges, confinement in segregation without a valid reason, interference with his access to the grievance system and removal of his personal property.

Mr. Turley also filed an application to proceed IFP. Section 1915(g) of Title 28 prohibits a prisoner from proceeding IFP if, on three or more occasions during his imprisonment, he has "brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(g). The sole statutory exception to this three-strikes limitation on IFP status is if "the prisoner is under imminent danger of serious physical injury." Id. In his IFP application, Mr. Turley disclosed that a different district judge already had dismissed two other civil actions on the basis of § 1915(g) after concluding that he had incurred strikes for three earlier lawsuits.*fn1 Mr. Turley argued, however, that those earlier suits should not be considered "strikes" because each action included some claims that proceeded to a decision on the merits, along with some claims that had been dis-missed at screening. See 28 U.S.C. § 1915A. Mr. Turley also contended that he was "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). In particular, he alleged that one of the defendant prison employees had threatened him.

A review of Mr. Turley's litigation history reveals three relevant civil rights cases filed during his incarceration. In the first action, Turley v. Cowan, No. 01-cv-188-MJR (S.D. Ill. Mar. 13, 2007), the district court dismissed one of Mr. Turley's claims at screening for failure to state a claim but permitted two other claims for retaliation by prison officials to proceed to a jury trial. The parties ultimately settled the case following a jury verdict in Mr. Turley's favor. Cowan, No. 01-cv-188-MJR (Docket Nos. 7, 39, 141, 151).

In the second action, Turley v. Smith, No. 02-cv-4592 (N.D. Ill. July 27, 2005), Mr. Turley claimed that prison administrators and medical personnel had been deliberately indifferent to his medical needs. At screening the district court concluded that Mr. Turley had failed to state a claim against some defendants, specifically those who relied on the authority of medical staff in denying his grievances. Smith, No. 02-cv-4592 (Docket No. 6). The court later granted summary judgment for the medical staff defendants on the ground that Mr. Turley lacked evidence of deliberate indifference. Smith, No. 02-cv-4592 (Docket No. 97).

Mr. Turley's third action, Turley v. Catchings, No. 03-cv-8491 (N.D. Ill. Oct. 26, 2006), included multiple allegations against prison officials, including a retaliation claim and a claim that he was placed in investigative segregation without due process. The district court concluded that Mr. Turley's complaint failed to state a claim for a due process violation and also dismissed from the case a number of defendants whom Mr. Turley had sued only in their supervisory capacity. Catchings, No. 03-cv-8491 (Docket No. 7). The court allowed the retaliation claim to proceed against four defendants, id., and later granted those defendants' motion for summary judgment after concluding that Mr. Turley had failed to exhaust his administrative remedies as required under 42 U.S.C. § 1997e(a), Catchings, No. 03-cv-8491 (Docket No. 128).

Based on this litigation history, the district court in the current litigation denied Mr. Turley's motion for leave to proceed IFP and dismissed the complaint without prejudice, thus permitting refiling after prepayment of the full filing fee. Citing George v. Smith, 507*fn2 F.3d at 607-08, and Boriboune v. Berge, 391 F.3d at 855, the district court concluded that Mr. Turley had accumulated three strikes because in each of his prior lawsuits at least one claim had been dismissed for failure to state a claim. The district court rejected Mr. Turley's contrary reading of § 1915(g): that a dismissal incurs a strike only if the entire action is dismissed as frivolous, malicious or for failure to state a claim. The court opined that Mr. Turley's interpretation of the statute was foreclosed by George and commented that "[w]hether George is a correct interpretation of § 1915(g) is not a decision for this court to make." R.9 at 3. The district court also rejected Mr. Turley's contention that he was under imminent danger of serious physical injury. This appeal followed.

II. DISCUSSION

At issue in this case is the interpretation of the three-strikes rule under the PLRA, see 28 U.S.C. § 1915(g). Specifically, we consider whether the dismissal of certain claims in an action on grounds that they are frivolous, malicious or fail to state a claim results in a strike, for purposes of § 1915(g), despite the fact that other related claims in the same action proceed to adjudication on the merits. The district court concluded these prior split cases did result in a strike. Mr. Turley con-tends that the court's application of the three-strikes limitation on a claim-by-claim basis is contrary to the plain language of the statute. He further challenges the district court's finding that he was not in imminent danger. See 28 U.S.C. § 1915(g); Ciarpaglini v. Saini, 352 F.3d 328, 330-31 (7th Cir. 2003). We review de novo a district court's application of the PLRA's three-strikes limitation. Ciarpaglini, 352 F.3d at 330; Evans v. Ill. Dep't of Corr., 150 F.3d 810, 811 (7th Cir. 1998).

"Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985); see also Ortega v. Holder, 592 F.3d 738, 743 (7th Cir. 2010); United States v. Olofson, 563 F.3d 652, 658 (7th Cir. 2009). Turning to that ...


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