NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 7, 2012*
Decided November 7, 2012
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 11‐3476
ALLEN E. VAUGHN, JR., Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:11‐cv‐ 0979‐JMS‐TAB
INDIANA DEP’T OF CORR., et al.,
Defendants‐Appellees. Jane Magnus‐Stinson,
Judge.
O R D E R
Allen Vaughn, an Indiana prisoner, appeals the dismissal of his civil rights
complaint under the “three‐strikes” provision of the Prison Litigation Reform Act. See
28
U.S.C. § 1915(g). Because Vaughn has not incurred three qualifying strikes, we vacate the
court’s judgment and remand for further proceedings.
*
The defendants were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Therefore the appeal is submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2)(C).
No. 11‐3476 Page 2
Vaughn sued the Indiana Department of Correction under
42 U.S.C. § 1983, alleging
that he had been denied confidential legal correspondence and adequate access to the law
library. He moved at that time to proceed in forma pauperis (IFP). The district court denied
Vaughn’s request for IFP, citing four “strikes” Vaughn had supposedly incurred during two
other proceedings and warning him that his failure to pay the full filing fee could lead to
dismissal of this action for failure to prosecute.
Vaughn then moved the court to reconsider, arguing that he had not incurred three
strikes because the court had cited only two “prior occasions” in which he had brought
inappropriate actions. The court denied the motion and reiterated that Vaughn had
accumulated “two strikes in each of the two cases” cited in its original order.
Vaughn again sought reconsideration, reiterating that he had not struck out and also
challenging the three‐strike rule as unconstitutional. The court denied this motion as
meritless, reaffirmed that Vaughn had struck out, and dismissed the action without
prejudice for failure to pay the filing fee.
On appeal Vaughn maintains that he has not in fact filed three prior actions that
have been dismissed under circumstances described in § 1915(a)(3) and thus has not
accumulated three strikes under the PLRA. Vaughn does not dispute incurring one strike
for the dismissal at screening, see 28 U.S.C. § 1915A(b)(1), of his complaint in Vaughn v.
James, No. 1:11‐cv‐0217‐WTL‐DML (S.D. Ind. May 3, 2011), but he does contest the three
strikes supposedly incurred in two other proceedings in which the district court certified
that his appeals had not be taken in good faith. See
28 U.S.C. § 1915(a)(3).
Vaughn’s position is correct. Section 1915(g) prohibits a prisoner from filing a civil
action IFP if he has “on three or more occasions . . . brought an action or appeal . . . 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) (emphasis added). Because the statute literally
speaks in terms of prior actions—as opposed to claims—to describe the type of dismissal
that will incur a strike, we have concluded that “a strike is incurred under § 1915(g) when
an inmate’s case is dismissed in its entirety based on the grounds listed in § 1915(g).” Turley
v. Gaetz,
625 F.3d 1005, 1012 (7th Cir. 2010). See Tolbert v. Stevenson,
635 F.3d 646, 651–52 (4th
Cir. 2011) (“‘action’ in § 1915(g) unambiguously means an entire case or suit”; citing cases);
but see Pointer v. Wilkinson,
502 F.3d 369, 377 (6th Cir. 2007) (upholding a strike for
complaint that was dismissed in part for failure to exhaust administrative remedies and in
part for failing to state a claim); Thomas v. Parker,
672 F.3d 1182, 1184 (10th Cir. 2012) (same).
Though Vaughn did properly incur a strike in Vaughn v. James, No. 1:11‐cv‐0217‐WTL‐DML
(S.D. Ind. May 3, 2011), the other orders on which the district court relied—all bad‐faith
certificates under § 1915(a)(3)—should not have counted as strikes because they did not
No. 11‐3476 Page 3
dismiss the actions in their entirety. Vaughn v. James, No. 1:11‐cv‐0217‐WTL‐DML (S.D. Ind.
June 22, 2011); Vaughn v. Marion County, No. 1:06‐cv‐1783‐LJM‐JMS (S.D. Ind. July 6, 2007);
Vaughn v. Marion County, No. 1:06‐cv‐1783‐LJM‐JMS (S.D. Ind. Sept. 25, 2007). Our own
search, moreover, has not uncovered any other lawsuit in which Vaughn incurred a strike.
We therefore conclude that Vaughn has not incurred three strikes under § 1915(g) and
remains eligible for IFP status.
On remand, the district court need not reconsider its rejection of Vaughn’s challenge
to the constitutionality of the PLRA. As the court noted, such challenges have been
uniformly rejected whether based on access‐to‐the‐courts theories, see, e.g., Johnson v. Daley,
339 F.3d 582, 586 (7th Cir. 2003); Lewis v. Sullivan,
279 F.3d 526, 530–31 (7th Cir. 2002); Carson
v. Johnson,
112 F.3d 818, 821 (5th Cir. 1997); Lyon v. Krol,
127 F.3d 763, 765 (8th Cir. 1997);
Rodriguez v. Cook,
169 F.3d 1176, 1180 (9th Cir. 1999); Rivera v, Allin,
144 F.3d 719, 723–24
(11th Cir. 1998), or the separation‐of‐powers doctrine. See Rodriguez,
169 F.3d at 1182; Rivera,
144 F.3d at 725.
Accordingly, the judgment is VACATED, and the case is REMANDED for further
proceedings.
