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When a strike is only a foul ball

The 4th U.S. Circuit Court of Appeals has just made it a bit easier for inmates hoping to score with civil litigation to stay at the plate for a few more pitches.

The court has loosened the 1996 “three strikes rule.”

Under that rule, if a prisoner swings and misses in federal court three times, he may not file another suit without paying filing fees unless there’s an emergency.  A “strike” meant having a civil suit dismissed as frivolous, malicious, or for failing to state a claim.

A divided three-judge panel today holds in McLean v. U.S.A., however, that dismissals without prejudice for failure to state a claim do not count under the three strikes rule.

“Rather than detracting from Congress’ goal of reducing meritless prisoner litigation, today’s decision will preserve the ability of district courts to meaningfully distinguish between poorly pled but potentially meritorious claims and those that simply lack merit,” writes Judge M. Blane Michael for the majority.

The favorable ruling does not save the day for McLean’s lawsuit, however.  Even though he is not a “three-striker” because most of his prior lawsuits were dismissed without prejudice, the court determines that his current claim is without merit and was properly dismissed by the district court.

By Peter Vieth

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