Key Points

  • A prior action that included claims dismissed on Eleventh Amendment immunity grounds generally does not count as a strike under 28 U.S.C. § 1915(g), unless the dismissing court explicitly labeled those claims frivolous or malicious.
  • Because the Eleventh Amendment is a jurisdictional bar, a court's purported alternative failure-to-state-a-claim ruling on immunity-barred claims would be ultra vires and does not create a strike.
  • Strikes are counted as of the date the prisoner files the complaint and seeks in forma pauperis status, so a later dismissal does not count.
  • Issue preclusion does not apply to a strikes determination that an earlier court made sua sponte, because an issue the parties did not raise was not actually litigated.
  • Judge Bush, concurring, urged district courts to screen prisoner complaints on the merits where possible and asked Congress to add sovereign immunity, failure to prosecute, and failure to serve as strike grounds.

A federal appeals court on Nov. 10 cleared a Michigan state prisoner to seek fee relief in his civil rights suit against Kent County, holding that two of his earlier lawsuits did not count against him under the federal law that bars prisoners with three cases dismissed as frivolous, malicious or meritless from paying court filing fees over time instead of up front.

A unanimous panel of the U.S. Court of Appeals for the Sixth Circuit vacated a district court ruling that had found the prisoner, Tyrelle Henderson Jr., to be a three-strikes litigant. Circuit Judge Griffin wrote the opinion, joined by Circuit Judges John K. Bush and Nalbandian. Bush also wrote a concurrence urging Congress to widen the list of dismissals that count as strikes.

The panel also rejected the county's argument that Henderson could not contest the strikes because the district court had already counted them against him in an earlier case. Issue preclusion applies only to issues actually litigated, and an issue usually counts as litigated only when the parties raise it, the court held. A question a court settles on its own does not qualify.

Henderson sued the county and its sheriff, Michelle LaJoye-Young, asserting constitutional claims, and asked to proceed in forma pauperis, a status that lets a litigant pay the filing fee over time or not at all. The Prison Litigation Reform Act, or PLRA, withholds that status from a prisoner who has "on 3 or more prior occasions" brought a federal action "that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim," unless he faces imminent danger of serious physical injury.

The U.S. District Court for the Western District of Michigan found that Henderson had three strikes and that the imminent-danger exception did not apply. Because he had not paid the fee, the court dismissed his suit without prejudice. Henderson appealed only the strikes ruling.

Henderson argued that two of the three prior cases did not count because they included claims dismissed under the Eleventh Amendment, which generally shields states from damages suits in federal court. The panel agreed, relying on its 2024 decision in Crump v. Blue. Under that precedent, an action counts as a strike only if every claim was dismissed on one of the three grounds the statute lists, and an Eleventh Amendment dismissal is not one of them unless the court explicitly labels the claim frivolous or malicious.

In the first disputed case, a Western District of Michigan suit decided in 2024, Henderson had sued two state prosecutors in their official capacities, and the court threw out his damages claims on immunity grounds. The county argued that the ruling bore traces of "failure-to-state-a-claim reasoning." Griffin wrote that the court dismissed the claims "solely on Eleventh Amendment grounds, and we look only to what the dismissing court did, not what it could have done."

In the second case, decided in 2020, a federal court in Kentucky wrote that Henderson's claims against a prosecutor were "barred by the Eleventh Amendment and fail to state a claim," and the county argued the second clause was an alternative holding that made the case a strike. The panel disagreed. It noted that the Kentucky court analyzed only immunity in any detail, and it called the Eleventh Amendment "a true jurisdictional bar." Once the court found the claims barred, it lost jurisdiction over them, so any alternative merits ruling "would have been ultra vires," Griffin wrote.

That left Henderson with one strike among the three cases the district court identified; neither side disputed that the third counted. The county pointed to two other cases as independent strikes, but the panel found that one of them was dismissed almost eight months after Henderson filed this suit and asked for fee relief. Strikes are counted as of that date, the court said, so the late dismissal did not count. Because the county needed both cases, the panel did not reach the second.

The county's last argument was preclusion. In a March 2025 ruling in another of Henderson's suits against the county, the district court had treated the two disputed cases as strikes. But Griffin wrote that an issue is "usually actually litigated only when the parties raise" it, not when a court decides it sua sponte. The county conceded that neither party had raised or contested the question in that case, and the panel held that Henderson remained free to challenge it.

The court drew the rule from general preclusion law, citing its own 2026 precedent, the Restatement (Second) of Judgments, and a 1970 Fifth Circuit decision holding that when a court "assumes to adjudicate an issue . . . not submitted by the parties . . . the judgment is not conclusive in a subsequent proceeding."

The majority did not let Henderson's record pass without comment. In a footnote, Griffin noted his "roughly two dozen lawsuits while incarcerated" and "apparent accumulation of substantial unpaid filing fees," and warned that proceeding without a lawyer is not a license to "clog the judicial machinery with meritless litigation and abuse already overloaded court dockets."

Bush went further. "Congress tried to address such complaints through legislation codified at 28 U.S.C. § 1915(g) and § 1915A. But as this case demonstrates, Congress may need to examine this issue again," he wrote. He said the Kentucky court, which raised immunity on its own during initial screening though it was not required to, could instead have dismissed the complaint for failure to state a claim. "That resolution would have issued a strike," he wrote.

Until Congress acts, Bush wrote, "district courts would be well advised, when able, to screen prisoner pro se in forma pauperis complaints on the merits as opposed to ruling on sovereign immunity grounds." He listed seven of Henderson's federal suits in Illinois dismissed for failure to prosecute and four Michigan state-court cases dismissed for failure to serve the defendant, none of which counted as strikes.

Bush urged district courts to label such cases frivolous so they fall within the statute. He also proposed that Congress "fill the apparent lacunae in § 1915(g) by adding sovereign immunity, failure to prosecute, and failure to serve as additional reasons that a case may count as a strike."

Kellen McCoy of Wilkinson Stekloff LLP argued for Henderson. Neil E. Youngdahl of Varnum LLP argued for the county and the sheriff.

The panel, which heard argument July 29, vacated the denial of fee relief and remanded the case to the district court in Grand Rapids for further proceedings consistent with its opinion.