Blakely v. Wards, No. 11-6945

Decided: December 14, 2012

James G. Blakely challenged the court’s denial of his attempt to proceed in forma pauperis on appeal. The court denied his motion for reconsideration.

Under the Prisoner Litigation Reform Act’s “three-strikes” provision, 28 U.S.C. § 1915(g), a prisoner that has had three prior cases dismissed as frivolous, malicious, or for failure to state a claim for which relief may be granted generally may not proceed in forma pauperis, but instead must pay all filing fees for subsequent suits up front. Blakely, a prisoner in a South Carolina correctional institution, has pursued numerous suits in both state and federal court; however, Blakely contends that his prior actions that were dismissed as frivolous, malicious, or failing to state a claim do not count as strikes under the three-strikes provision because the dismissals occurred at summary judgment.

The court was not convinced by Blakely’s argument and held instead that the fact that an action was dismissed as frivolous, malicious, or failing to state a claim determines whether the dismissal constitutes a strike, not the case’s procedural posture at dismissal. Thus, if a summary judgment order indicates on its face that the court considered the criteria under § 1915(g) for a strike to have been met, then the dismissal constitutes a strike for purposes of the three-strikes provision. Since Blakely has had more than three prior cases in which the summary judgment dismissal orders expressly stated that the suit was frivolous, malicious, or failed to state a claim for which relief could be granted, he may no longer proceed in forma pauperis pursuant to the three-strikes provision of the Prisoner Litigation Reform Act. As such, the court denied his motion for reconsideration.

Full Opinion

– Kassandra Moore

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