Aery v. Dakota County

Background

James Paul Aery sued Dakota County, Connor Cremens in his official capacity, and Joel Harazuk individually and in his official capacity. He asked to proceed without paying the full filing fee upfront. Magistrate Judge Elizabeth Cowan Wright denied that request on June 15, 2022, applying the Prison Litigation Reform Act’s restriction on prisoners who have accumulated three qualifying dismissals, commonly called the “three-strikes rule.”

The magistrate judge found that three of Aery’s earlier lawsuits in the District of Minnesota had been dismissed for failure to state a claim: one on March 22, 2022, one on April 13, 2022, and one on May 6, 2022. All three dismissals occurred before Aery filed this case on June 13, 2022. The magistrate judge also found that Aery’s complaint did not show that he faced imminent danger of serious physical injury. The earlier order allowed the case to continue if Aery paid the full $402 filing fee by the stated deadline.

Aery’s objection

Aery did not challenge the finding that he was a prisoner covered by the Act or the finding that his complaint did not involve imminent danger. He challenged only whether the three earlier dismissals counted as strikes. He argued that two of those cases should not count because the courts had not given him an opportunity to amend his complaints.

Judge Menendez rejected that argument. The court explained that the statute applies to qualifying dismissals issued both with and without prejudice. The court also noted that a dismissal generally does not count as a strike when the court gives the plaintiff permission to amend, but the courts in the two cases Aery identified did not do so.

Aery also argued that this lawsuit was partly a continuation of an earlier related case in which a judge had said he could file another action after becoming better prepared. Judge Menendez explained that the earlier related case was not used as one of Aery’s three strikes. The three later dismissals were the strikes supporting the denial of fee-waiver status.

Ruling

Judge Menendez held that the magistrate judge did not err in finding that 28 U.S.C. § 1915(g) barred Aery from proceeding without paying the filing fee. The court did not decide the underlying claims against the defendants. It overruled Aery’s objections and affirmed the June 15, 2022 order. Aery had to pay the full $402 filing fee by August 23, 2022; if he did not, the action would be dismissed without prejudice for failure to prosecute.