Hubert D. Hill v. MADISON COUNTY, ILLINOIS, and RANDY YOUNG

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1307
H UBERT D. H ILL,
Plaintiff-Appellant,
v.
M ADISON COUNTY, ILLINOIS, and RANDY YOUNG,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 19-cv-00555-JPG — J. Phil Gilbert, Judge.
____________________
ARGUED DECEMBER 8, 2020 — DECIDED DECEMBER 22, 2020
____________________
Before EASTERBROOK, K ANNE, and H AMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. Hubert Hill filed a suit in
state court, asking a judge to compel Randy Young, his pris-
on’s warden, to mail two complaints that Hill wanted to file
in federal court. Young and Madison County, the other de-
fendant, removed Hill’s suit to federal court, as they were
entitled to do because Hill based his claim on the First

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2 No. 20-1307
Amendment (applied to the states by the Fourteenth). See 28
U.S.C. §1441(a).
The district judge dismissed the complaint for failure to
state a claim on which relief may be granted, observing that
Hill had not alleged that the prison prevented him from fil-
ing a federal suit. To the contrary, the judge stated, the dis-
trict court’s records show that the two complaints to which
Hill referred had been filed. The judge gave Hill a second
opportunity to present a viable claim, and when Hill did not
amend his complaint the judge dismissed the suit with prej-
udice. See 2019 U.S. Dist. LEXIS 216378 (S.D. Ill. Dec. 17,
2019); 2020 U.S. Dist. LEXIS 9371 (S.D. Ill. Jan. 21, 2020).
Hill does not contest that decision. Instead he asks us to
vacate this language from the judgment: “This dismissal
shall count as one of [Hill’s] allohed ‘strikes’ under the pro-
visions of 28 U.S.C. § 1915(g).” This statute provides:
In no event shall a prisoner bring a civil action or appeal a judg-
ment in a civil action or proceeding under this section if the pris-
oner has, on 3 or more prior occasions, while incarcerated or de-
tained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.
Hill contends that there are two problems with the language:
first that it represents an advisory opinion forbidden by Ar-
ticle III of the Constitution, and second that it is a substan-
tive mistake because the suit was filed in state rather than
federal court.
Hill wants us to start with the Constitution, but it is best
to resolve a case on statutory grounds if at all possible. See,

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No. 20-1307 3
e.g., New York City Transit Authority v. Beazer, 440 U.S. 568,
582 (1979). And it is possible to do so here. The problem with
the district court’s decision is statutory; the constitutional
argument is just a misnomer for a statutory point.
According to Hill, the “strike” notation is an advisory
opinion because §1915(g) commits to a later tribunal the tot-
ing up of “strikes” in earlier suits and appeals. We have so
held. See, e.g., Wallace v. Baldwin, 895 F.3d 481, 485 (7th Cir.
2018); Lucien v. Jockisch, 133 F.3d 464, 469 n.8 (7th Cir. 1998).
It follows, Hill maintains, that the district judge violated the
Constitution. Not at all. What follows is that the judge ex-
ceeded the authority granted by statute.
Suppose §1915(g) had included one more sentence: “The
court that dismisses a civil action or appeal also must decide
conclusively whether the decision counts toward the 3 al-
lowed by this subsection.” Then the district judge would
have had authority to include a “strike” resolution in the
judgment. It is hard to see a constitutional problem in such a
decision. District judges often decide mahers that concern
consequences of the judgment. For example, a judge who
enters an injunction may tell the losing party that defiance
will be met with a contempt citation, and a judge who dis-
misses a suit may tell the loser that an ahempt to relitigate
will lead to an award of sanctions. That these warnings do
not have bite until some other event has happened would
not create a constitutional bar. An opinion is not “advisory”
when it has concrete consequences, and if one consequence
of a “strike” finding is that only two strikes remain, a judicial
alert to that consequence of the judgment is no more adviso-
ry than when a baseball umpire raises his arm and bellows
“Strike one.”

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4 No. 20-1307
But §1915(g) does not contain this hypothetical sentence,
and we have understood §1915(g) to leave the effective deci-
sion to a later tribunal. Thus the district court exceeded its
statutory authority by treating a “strike” as part of the
judgment. Accord, Deleon v. Doe, 361 F.3d 93, 95 (2d Cir.
2004); Furnace v. Giurbino, 838 F.3d 1019, 1029 (9th Cir. 2016);
Fourstar v. Garden City Group, Inc., 875 F.3d 1147 (D.C. Cir.
2017).
The district judge put “strike” language in his opinions
as well as the judgment, and Hill concedes that the language
in the opinions is consistent with the Constitution—for opin-
ions are just explanations, while judgments are legally bind-
ing. Advice from a judge to a litigant does not violate Article
III, precisely because it is not conclusive.
It makes good sense for a judge who believes a dismissal
to come within the scope of §1915(g) to include notice to that
effect. Notice assists the litigant, who can alter future litiga-
tion tactics to stop short of three strikes. Notice also aids
other judges. It is hard to imagine how the system estab-
lished by §1915(g) could be administered if judges must
keep silent about whether their decisions likely come within
§1915(g). Silence by all judges who dismiss complaints (or
resolve appeals) would put the onus on other judges to
screen every newly filed complaint without assistance—for if
any plaintiff has “struck out” §1915(g) must be applied be-
fore the new complaint is docketed and the defendant
served. It is not feasible for every judge assigned to a prison-
er’s complaint to compile a catalog of that prisoner’s litiga-
tion and effectively readjudicate each of the earlier suits to
see whether it “was dismissed on the grounds that it is frivo-
lous, malicious, or fails to state a claim upon which relief

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No. 20-1307 5
may be granted”. It is hard enough to do that when earlier
judges have included “strike” notices in their opinions; those
notices, which can be added to searchable databases, enable
newly assigned judges to concentrate their ahention on a
subset of the prisoner’s suits and appeals.
It follows that the language in the opinions dismissing
Hill’s suit was proper—if this suit indeed comes within
§1915(g). Which it does not. Section 1915(g) requires pre-
payment of the docket fees only if the plaintiff has thrice
“brought an action or appeal in a court of the United States”
only to have the suit or appeal decided on one of the listed
grounds. Hill did not “bring” this suit in a court of the Unit-
ed States. He filed it in state court. Defendants brought it to
federal court under §1441(a), but §1915(g) does not apply to
complaints brought to federal courts by defendants.
Defendants have declined to participate in Hill’s appeal,
which does not concern the merits of Hill’s suit. We appoint-
ed Megan Lacy Owen of Jones Day as amicus curiae to defend
the judgment, so that we would have an adversarial presen-
tation. She asks us not to interpret §1915(g) literally. The leg-
islative goal is to limit the number of unsuccessful suits that
prisoners can bring, without at least paying something for the
exercise, and to achieve that goal a court should read
“bring” to include any suit that comes before a federal court.
So the argument goes.
That is too much of a stretch. Language sets limits, and
“bring” means to commence something, not to prosecute it.
Congress enacted a rule in §1915(g); it did not announce a
standard that judges would elaborate later. Courts must not
turn rules into standards.

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6 No. 20-1307
[N]o legislation pursues its purposes at all costs. Deciding what
competing values will or will not be sacrificed to the achieve-
ment of a particular objective is the very essence of legislative
choice—and it frustrates rather than effectuates legislative intent
simplistically to assume that whatever furthers the statute’s pri-
mary objective must be the law.
Rodriguez v. United States, 480 U.S. 522, 525–26 (1987) (em-
phasis in original).
Nor is there a need to read §1915(g) more broadly than
its language. Courts have ample means to penalize the pur-
suit of frivolous suits that are removed to federal court. Rule
11 of the Federal Rules of Civil Procedure applies to all pa-
pers filed in federal court. Every paper carries with it a set of
representations under Rule 11(b), and if any of those repre-
sentations is false the court may impose a penalty. If a pris-
oner fails to pay a penalty imposed under Rule 11, the court
may take other steps, such as revoking the privilege of liti-
gating in forma pauperis or barring new suits altogether. See
Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th
Cir. 1995).
At least three other circuits have held that removed suits
cannot count as “strikes” under §1915(g). See Dooley v.
WeNel, 957 F.3d 366, 377 n.9 (3d Cir. 2020); Harris v. Magnum,
863 F.3d 1133, 1140 (9th Cir. 2017); Woodson v. McCollum, 875
F.3d 1304, 1307 (10th Cir. 2017). We agree with those deci-
sions. It follows that this suit does not count as a “strike”
when some later district judge comes to assess the totality of
Hill’s litigation.
One more comment before we close. The amicus curiae
contends that the statements in the district court’s opinion
(as opposed to the judgment) are dicta and hence not ap-

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No. 20-1307 7
pealable. Yes and no. They are dicta in the sense that they are
not binding in future litigation, but they still aggrieve Hill
because they draw a future judge’s ahention to this suit and
may induce the judge to deny forma pauperis status wrongly.
Appeal is proper when a litigant suffers a legal injury from a
decision. A strike notice causes such an injury whether or
not it is conclusive. By disapproving that notice, we relieve
Hill of a potential obstacle to a future suit.
The contested statement in the district court’s judgment
is vacated, and the equivalent statements in the opinions are
disapproved. Ms. Owen has our thanks for her assistance.

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