Birdo v. Rykken

Background

Tanaka Birdo filed applications to proceed in forma pauperis, meaning without paying the filing fee at the outset. The court previously ordered Birdo to explain why the Prison Litigation Reform Act’s “three-strikes” provision, 28 U.S.C. § 1915(g), should not make him ineligible for that status.

The court explained that Birdo was a prisoner when he filed this case. Although he was later released, the court stated that his status when the action began controlled. The court also identified three earlier federal lawsuits that had been dismissed for failure to state a claim on which relief could be granted.

Arguments and Analysis

Birdo did not dispute that he had initiated the three earlier lawsuits. He argued that he could not pay the filing fee because he did not have a job. The court stated that the three-strikes provision makes financial eligibility irrelevant when the provision applies, unless the prisoner shows that he was in imminent danger of serious physical injury.

Birdo also argued that one earlier dismissal should not count because the court in that case discussed qualified immunity. The court rejected that argument, finding that the earlier case had been dismissed for failure to state a viable claim and that the qualified-immunity discussion was an alternative, unnecessary ground. The court stated that a dismissal on more than one ground still counts as a strike when one ground was failure to state a claim.

Finally, Birdo argued that the earlier courts had incorrectly decided that his claims were not viable. The court stated that strike counting depends on what the earlier courts actually did, not what they should have done. It concluded that all three earlier lawsuits counted as strikes under § 1915(g).

Ruling

The court denied Birdo’s applications to proceed in forma pauperis. It ordered him to pay the $405 filing fee by July 15, 2024. The order states that, if he failed to pay, the court may recommend that the case be dismissed without prejudice for failure to prosecute. Judge Dulce J. Foster signed the order as a United States magistrate judge.

Effect of the Order

The order did not itself dismiss the lawsuit. It denied the fee-waiver applications and required payment of the filing fee. It stated that a later recommendation of dismissal without prejudice was possible if Birdo did not pay by the deadline.