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Turley v. Gaetz

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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.

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