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Miller & Chevalier's Prison Litigation Reform Act Win in DC Circuit Covered by Bloomberg BNA Criminal Law Reporter

"Prisoner Only Has One Strike, Not Out Yet"

Bloomberg BNA Criminal Law Reporter

Acting as amicus in the U.S. Court of Appeals for the D.C. Circuit, Miller & Chevalier secured a victory yesterday that significantly clarifies the scope of the Prison Litigation Reform Act (PLRA). At oral argument, Miller & Chevalier's Jonathan Kossak* argued that the appellant, Victor Charles Fourstar Jr., had not accrued three "strikes" under the PLRA and had been denied in forma pauperis status in error. The D.C. Circuit agreed, finding that in two of Mr. Fourstar's cases his state law claims had not been dismissed on one of three PLRA-enumerated grounds. Instead, the courts had simply declined to accept supplemental jurisdiction over those claims, a basis for dismissal that the D.C. Circuit definitively concluded was not encompassed by the PLRA. The court also held that federal courts must independently examine a prisoner's prior litigation record to decide for themselves whether a prisoner's prior dismissed lawsuit counts as a "strike," and could afford no precedential effect to a dismissing court's statement that the case before it constituted a strike. The D.C. Circuit appointed Miller & Chevalier's Anthony F. Shelley as the amicus, and Kossak and Dawn Murphy-Johnson assisted on the case. The case is Fourstar v. Garden City Grp., Inc., 2017 BL 423850, D.C. Cir., No. 15-5049, 11/28/17.

*Former Miller & Chevalier attorney