Timothy W. Elkins, Jr. v. John Varga

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 17, 2021 *
Decided August 24, 2021
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 20-2645
TIMOTHY W. ELKINS, JR.,
Plaintiff-Appellant,
v.
JOHN VARGA, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Western Division.
No. 3:19-cv-50345
John Robert Blakey,
Judge.
O R D E R
While a prisoner at Dixon Correctional Center in Illinois, Timothy Elkins sued
several prison officials under 42 U.S.C. § 1983 for failing to protect him from an assault
and ignoring his injuries. Before screening Elkins’ amended complaint, though, the
district court determined that he had accrued three “strikes” under the Prison Litigation
Reform Act (PLRA), 28 U.S.C. § 1915(g), and revoked his leave to proceed in forma
* Appellees were not served with process in the district court and are not
participating in this appeal. We have agreed to decide this case without oral argument
because the brief and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-2645 Page 2
pauperis. Instead of paying the statutory filing fee, Elkins appealed. See Roberts v. U.S.
Dist. Court for N. Dist. of Cal., 339 U.S. 844, 845 (1950). We agree with Elkins that one of
the dismissals relied on by the district court is not a strike. Elkins had only two others at
the time he filed his complaint, so we vacate the district court’s order and remand for
further proceedings.
Elkins filed his complaint in December 2019, and the district court initially
permitted him to proceed in forma pauperis. When Elkins amended the complaint a
few months later, however, the court ordered him to show cause why his pauper status
should not be revoked because it had “come to the Court’s attention” that he had three
strikes under the PLRA. The court first counted two of Elkins’ prior lawsuits that had
been dismissed for failure to state a claim, and Elkins does not dispute either case’s
status as a strike. The third strike came from Elkins v. Madison County, No. 3:18-cv-1311
(S.D. Ill. dismissed Aug. 3, 2018), which was Elkins’ challenge to a state-court
foreclosure proceeding that the federal court dismissed for lack of jurisdiction under the
Rooker-Feldman doctrine—the general rule that the Supreme Court is the only federal
court that can review state-court judgments. See District of Columbia Ct. of Appeals v.
Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). The district
court here found that Madison County was frivolous, so it determined that Elkins had
struck out and revoked his pauper status.
Elkins timely appealed in August 2020, arguing that Madison County should not
have counted as a strike. We agree with him. The PLRA’s “three strikes” provision
limits a prisoner’s right to proceed in forma pauperis in specific circumstances:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained 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.
28 U.S.C. § 1915(g). Prisoners incur a strike only when a case is dismissed on one of the
grounds listed in the statute. Turley v. Gaetz, 625 F.3d 1005, 1008–09 (7th Cir. 2010). Lack
of jurisdiction is not on that list. See Haury v. Lemmon, 656 F.3d 521, 522 (7th Cir. 2011).
A case dismissed for lack of jurisdiction thus can lead to a strike only if the assertion of
jurisdiction was frivolous. Id. at 523.

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No. 20-2645 Page 3
The district court recognized these principles but misapplied them to Elkins’
case. It concluded that the assertion of jurisdiction in Madison County was frivolous
because the suit was dismissed under the Rooker-Feldman doctrine, and the court
understood Steele v. Cottey, 234 F.3d 1274 (7th Cir. 2000) (table decision), to hold that
any lawsuit dismissed under Rooker-Feldman was necessarily frivolous. That was a
misreading of Steele, which in any event was a nonprecedential order and not the law of
the circuit. See 7TH C IR. R. 32.1(b). Steele applied an earlier, more expansive
understanding of the scope of Rooker-Feldman that does not appear to be consistent with
the Supreme Court’s later decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280 (2005), showing that there is plenty of room for non-frivolous disagreement
about the scope of the doctrine. On its own terms, moreover, Steele found only that the
assertion of jurisdiction in that particular case was frivolous. It did not hold that any
case barred by Rooker-Feldman is frivolous, nor could it have done so given the evolution
of that doctrine and the room to debate its boundaries.
Instead, our precedent holds that a prisoner incurs a strike only when the district
judge dismissing the case finds that the assertion of jurisdiction was frivolous. See
Haury, 656 F.3d at 523. The district judge made no such finding in Madison County. “It is
of course possible that the judge also considered that suit frivolous.” Id. But “[w]here
the judge did not make such findings, we cannot read into his decision a ground for
dismissal that he did not state.” Id.
Elkins thus had only two strikes at the time he filed this complaint, so the district
court erred in revoking his leave to proceed in forma pauperis under § 1915(g). We have
since determined that Elkins incurred a third strike on October 1, 2020, when he had
another case dismissed for failure to state a claim. See Elkins v. Remmers, No. 19 C 50344
(N.D. Ill. Oct. 1, 2020), appeal dismissed, No. 20-2956 (7th Cir. June 23, 2021). But because
§ 1915(g) precludes a prisoner from bringing an action or appeal in forma pauperis only
if the strikes were incurred on “prior occasions,” the later strike does not change the
outcome for this suit and appeal, brought before Elkins’ latest strike. See Abdul-Wadood
v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996). Elkins also appears to have been released
from prison while this appeal was pending, though that too has no effect on a case he
brought while he was a prisoner. See Robbins v. Switzer, 104 F.3d 895, 897 (7th Cir. 1997).
Elkins otherwise contends that § 1915(g) is unconstitutional as applied to him,
that his complaint met the imminent-danger exception in that section, and that the
district court was obliged to recruit counsel for him before revoking his pauper status.
Because we conclude § 1915(g)’s “three strikes” provision does not apply in this case,

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No. 20-2645 Page 4
we need not consider these arguments. We VACATE the district court’s order revoking
Elkins’ pauper status and REMAND for the court to screen Elkins’ amended complaint.
See 28 U.S.C. § 1915(e)(2).

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