933 F.3d 871 (7th Cir. 2019), 18-1290, Greyer v. Illinois Department of Corrections

Docket Nº:18-1290, 18-1458
Citation:933 F.3d 871
Opinion Judge:Wood, Chief Judge.
Party Name:Fabian GREYER, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF CORRECTIONS, et al. Defendants-Appellees. Michael Johnson, Plaintiff-Appellant, v. Jason Dalke, et al. Defendants-Appellees.
Attorney:Sarah O’Rourke Schrup, Attorney, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, Chicago, IL, for Plaintiff - Appellant. Mary H. Schnoor, Attorney, JONES DAY, Chicago, IL, for Amicus Curiae MARY H. SCHNOOR. Michael Johnson, Pro Se.
Judge Panel:Before Wood, Chief Judge, and Bauer and Rovner, Circuit Judges.
Case Date:August 13, 2019
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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933 F.3d 871 (7th Cir. 2019)

Fabian GREYER, Plaintiff-Appellant,



Michael Johnson, Plaintiff-Appellant,


Jason Dalke, et al. Defendants-Appellees.

Nos. 18-1290, 18-1458

United States Court of Appeals, Seventh Circuit

August 13, 2019

Argued April 3, 2019

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Appeals from the United States District Court for the Northern District of Illinois, Western Division. Nos. 17 C 7840, 17 C 50384 — Philip G. Reinhard, Judge.

Sarah O’Rourke Schrup, Attorney, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, Chicago, IL, for Plaintiff - Appellant.

Mary H. Schnoor, Attorney, JONES DAY, Chicago, IL, for Amicus Curiae MARY H. SCHNOOR.

Michael Johnson, Pro Se.

Before Wood, Chief Judge, and Bauer and Rovner, Circuit Judges.


Wood, Chief Judge.

One of Congress’s expressed goals when it passed the Prison Litigation Reform Act ("PLRA") was to rein in the flood of prisoner litigation— all too often frivolous or vexatious, it thought— clogging the courts. See Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1633-34 & nn. 269-70 (2003) (citing Porter v. Nussle, 534 U.S. 516, 525, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); and 141 CONG. REC. 514, 627 (daily ed. Sept. 29, 1995) (statement of Sen. Hatch)). Of the many tools the law introduced to serve that purpose, one of the most potent is the so-called "three strikes" provision. See 28 U.S.C. § 1915(g). The statute specifies that a prisoner may not proceed in forma pauperis if she "has, on [three] or more prior occasions, while incarcerated or detained in any facility, 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 ...." Id.

So far, so good. But no legislation spells out everything, and the PLRA is no exception. Our concern here is with the way in which courts administer the three-strikes rule. Many have created elaborate forms requiring prisoner-litigants to list their entire litigation histories. The Northern District of Illinois’s form, which is the one at issue here, requires the prisoner to furnish all of the following information: • name of case and docket number;

• date of filing;

• all plaintiffs for each case, including co-plaintiffs and their aliases;

• all defendants for each case;

• the court in which each lawsuit was filed;

• the name of the assigned judge;

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• a description of the claim(s) made;

• the disposition of the case; and

• the date of disposition.

NORTHERN DISTRICT OF ILLINOIS, Complaint Under the Civil Rights Act, Title 42, Section 1983 U.S. Code, or Complaint Under the Constitution ("Bivens" Action), Title 28 Section 1331 U.S. Code (federal defendants), https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_online/1983EDForm092007.pdf. By collecting this information, a district court reviewing an indigent prisoner’s complaint can ensure itself that the prisoner plaintiff has not "struck out."

But this solution has created at least two new problems: first, prisoners may not be the most reliable narrators of their litigation history; and second, there is a serious question whether the district court has created a "local rule imposing a requirement of form" that cannot be "enforced in a way that causes a party to lose any right because of a nonwillful failure to comply." See Fed.R.Civ.P. 83(a)(2). We focus on the first of these, as the parties have not briefed the second. Even prisoners with no incentive to lie often do not have ready access to their litigation documents and may not remember all of the details of their cases. The form, however, appears to be oblivious to these practical problems. The Northern District of Illinois sternly warns prisoners that "REGARDLESS OF HOW MANY CASES YOU HAVE PREVIOUSLY FILED, YOU WILL NOT BE EXCUSED FROM FILLING OUT THIS SECTION COMPLETELY, AND FAILURE TO DO SO MAY RESULT IN DISMISSAL OF YOUR CASE." Id. (capitalization in original). The two cases now before us, which we have consolidated for disposition, are about the enforceability of that threat.



On October 20, 2017, Fabian Greyer, an inmate at Illinois’s Dixon Correctional Center, filed a suit in the Western Division of the Northern District of Illinois. He alleged that several actions by prison officials had violated his constitutional rights, including fondling and sexual harassment by a correctional officer, retaliation for using the grievance system, and refusal to place him in protective custody. When he filled out the litigation-history portion of his form complaint, Greyer attested that he had not "begun any other lawsuits in state or federal court relating to [his] imprisonment." As we noted, the form warned that "[f]ailure to comply with this provision may result in summary denial of your complaint." Greyer’s statement, in the district court’s opinion, was inaccurate. By the time his complaint was filed, he had been involved in two other lawsuits in federal court. The first was his habeas corpus petition, which he filed in 2007. See

Greyer v. Chandler, No. 07-CV-2010 (C.D. Ill. Jan. 22, 2007). The second was another civil suit filed on the same day he filed the present action. See Greyer v. Ill. Dep’t of Corr., No. 17-CV-1133 (S.D. Ill. Oct. 20, 2017). Neither of those cases qualified as a "strike" under the PLRA, and it is undisputed that had he disclosed them, Greyer could have proceeded with this suit in forma pauperis . He therefore had nothing to gain from hiding these suits from the district court.

The court nevertheless issued a show-cause order requiring Greyer to explain why he had omitted these cases from his litigation history, and why the court should not dismiss this case as a sanction for fraud on the court. Greyer explained in response that he suffers from mental illness and as a result he takes psychotropic medications. Additionally, his capacity to

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read and write is extremely limited. Because of his literacy problem, he has had to recruit other prisoners to help him prepare his filings in this case. He manages this by bartering his food for legal aid. Critically, his near illiteracy prevents him from being able properly to "asses[s] what has been written for him." Greyer concluded his explanation with a renewed plea for recruited counsel, stating that he was in "dire need" of a lawyer’s help.

The district court made no findings about the truth or falsity of Greyer’s statements. It found his answers non-responsive to the "straightforward question requiring a simple answer" posed by the show-cause order. Accordingly, the district court dismissed the case with prejudice as a sanction for fraud on the court, citing Hoskins v. Dart, 633 F.3d 541 (7th Cir. 2011). The judge made no explicit findings about whether Greyer’s omissions were either intentional or material, as required for a finding of fraud. See id. at 543.


Our other case comes from Michael Johnson, another Dixon inmate, who filed his complaint on December 18, 2017, alleging numerous unconstitutional conditions of confinement. He too filed a motion to proceed in forma pauperis . Johnson has a rather extensive prison-litigation history, most of which he included (or attempted to include) on the litigation-history form included with his complaint.

That form required Johnson to "[l]ist ALL lawsuits you (and your co-plaintiffs, if any) have filed in any state or federal court (including the Central and Southern Districts of Illinois)." In response, Johnson listed varying amounts of information about eight earlier suits that he had filed. While he was able to give full information about his most recent and still-pending cases, the other case information sheets are riddled with holes. For example, Johnson listed one case as having been filed "in 2014 or 2015." Another he stated was filed in "U.S. District Court ???"; he could not remember the name of the assigned judge. And that was not his only lapse: in four of the eight cases Johnson listed, there was some piece of required information that he expressly stated he could not remember.

The district court, however, was on the job. It identified three cases that it believed were missing from Johnson’s list: Turner v. Wexford, No. 13 CV 3072 (C.D. Ill. Mar. 14, 2013); Johnson v. Bennett, No. 14 CV 1210 (C.D. Ill. Apr. 14, 2016); and Johnson v. Dalke, No. 17 CV 50265 (N.D.Ill. Nov. 6, 2017). Noting the number of cases Johnson had filed while imprisoned, the district court believed that Johnson was an experienced litigant who should have known not to leave any cases off the required form. Because of these omissions, the district court ordered Johnson to show cause why his suit should not be dismissed with prejudice as a sanction for fraud on the court.

Johnson responded that he simply forgot about the cases the district court identified, and their omission was a simple mistake. He also objected to the district court’s characterization of himself as an "experienced" litigant, arguing that he did not know how to litigate cases, but had turned to the courts when he thought that others had violated his rights. Johnson’s lack of know-how is corroborated by the level of success he has had in his prior lawsuits— zero. While Johnson has never incurred a strike, he also never has won relief in any of his cases, identified or unidentified. In his response, Johnson also revealed another case, Johnson v. Haenitsch, No. 17 CV 50383 (N.D. Ill.Dec. 18, 2017), which he had filed on the same day as this case.

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The district court saw nothing in...

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