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PLRA – Partial Dismissal as Strike

State ex rel. Titus Henderson v. Raemisch, 2010 WI App 114; pro se; Resp. Br.

Partial dismissal of a prisoner lawsuit doesn’t counts as a “strike” within the meaning of the  § 801.02(7)(d) “three-strike” provision of the Wisconsin Prisoner Litigation Reform Act.

The PLRA regulates “prisoner” lawsuits. Typically, these relate to conditions of confinement, something the SPD doesn’t provide representation for, but our courts in their infinite wisdom apply the strictures of the PLRA to matters of SPD concern such as cert review of revocations, State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86, and habeas challenges to release-date calculation, State ex rel. Joseph Stinson v. Morgan, 226 Wis.2d 100, 593 N.W.2d 924 (Ct. App. 1999). So keeping up with PLRA developments may be worth your while.

Henderson had filed several prior prison-litigation lawsuits, each containing multiple claims in which some but not all claims were dismissed as frivolous. An “action” dismissed as frivolous counts as a “strike” and when you accumulate three such strikes, the PLRA forbids additional prison litigation without you prepaying filing fees. The court takes a detailed look at the meaning of the term “action,” and concludes it means the entire proceeding, not just “parts” (which is to say, “claims”) within it.

¶26      Thus, relying on the authorities discussed above, we conclude that “action,” as it is used in WIS. STAT. § 801.02(7)(d), denotes an entire legal proceeding, lawsuit or controversy. By definition, a partial dismissal or the dismissal of a claim or claims when the suit proceeds on other valid claims is not the dismissal of an “action” within the meaning of § 801.02(7)(d). Accordingly, a partial dismissal does not count as a strike under the three-strikes provision of Wisconsin’s PLRA.

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