Michael Johnson v. Jason Dalke

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1290
FABIAN GREYER,
Plaintiff‐Appellant,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS, et al.
Defendants‐Appellees.
____________________
No. 18‐1458
MICHAEL JOHNSON,
Plaintiff‐Appellant,
v.
JASON DALKE, et al.
Defendants‐Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Western Division.
Nos. 17 C 7840, 17 C 50384 — Philip G. Reinhard, Judge.
____________________
ARGUED APRIL 3, 2019 — DECIDED AUGUST 13, 2019
____________________
2 Nos. 18‐1290, 18‐1459
Before WOOD, Chief Judge, and BAUER and ROVNER, Circuit
Judges.
WOOD, Chief Judge. One of Congress’s expressed goals
when it passed the Prison Litigation Reform Act (“PLRA”)
was to rein in the flood of prisoner litigation—all too often
frivolous or vexatious, it thought—clogging the courts. See
Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555,
1633–34 & nn. 269–70 (2003) (citing Porter v. Nussle, 534 U.S.
516, 525 (2002); and 141 CONG. REC. 514, 627 (daily ed. Sept.
29, 1995) (statement of Sen. Hatch)). Of the many tools the law
introduced to serve that purpose, one of the most potent is the
so‐called “three strikes” provision. See 28 U.S.C. § 1915(g).
The statute specifies that a prisoner may not proceed in forma
pauperis if she “has, on [three] 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 ….” Id.
So far, so good. But no legislation spells out everything,
and the PLRA is no exception. Our concern here is with the
way in which courts administer the three‐strikes rule. Many
have created elaborate forms requiring prisoner‐litigants to
list their entire litigation histories. The Northern District of Il‐
linois’s form, which is the one at issue here, requires the pris‐
oner to furnish all of the following information:
 name of case and docket number;
 date of filing;
 all plaintiffs for each case, including co‐plaintiffs
and their aliases;
 all defendants for each case;
Nos. 18‐1290, 18‐1459 3
 the court in which each lawsuit was filed;
 the name of the assigned judge;
 a description of the claim(s) made;
 the disposition of the case; and
 the date of disposition.
NORTHERN DISTRICT OF ILLINOIS, Complaint Under the Civil
Rights Act, Title 42, Section 1983 U.S. Code, or Complaint Un‐
der the Constitution (“Bivens” Action), Title 28 Section 1331
U.S. Code (federal defendants), https://www.ilnd.uscourts.
gov/_assets/_documents/_forms/_online/1983EDForm092007
.pdf. By collecting this information, a district court reviewing
an indigent prisoner’s complaint can ensure itself that the
prisoner plaintiff has not “struck out.”
But this solution has created at least two new problems:
first, prisoners may not be the most reliable narrators of their
litigation history; and second, there is a serious question
whether the district court has created a “local rule imposing a
requirement of form” that cannot be “enforced in a way that
causes a party to lose any right because of a nonwillful failure
to comply.” See FED. R. CIV. P. 83(a)(2). We focus on the first
of these, as the parties have not briefed the second. Even pris‐
oners with no incentive to lie often do not have ready access
to their litigation documents and may not remember all of the
details of their cases. The form, however, appears to be obliv‐
ious to these practical problems. The Northern District of Illi‐
nois sternly warns prisoners that “REGARDLESS OF HOW
MANY CASES YOU HAVE PREVIOUSLY FILED, YOU WILL
NOT BE EXCUSED FROM FILLING OUT THIS SECTION
COMPLETELY, AND FAILURE TO DO SO MAY RESULT IN
DISMISSAL OF YOUR CASE.” Id. (capitalization in original).
4 Nos. 18‐1290, 18‐1459
The two cases now before us, which we have consolidated for
disposition, are about the enforceability of that threat.
I
A
On October 20, 2017, Fabian Greyer, an inmate at Illinois’s
Dixon Correctional Center, filed a suit in the Western Division
of the Northern District of Illinois. He alleged that several ac‐
tions by prison officials had violated his constitutional rights,
including fondling and sexual harassment by a correctional
officer, retaliation for using the grievance system, and refusal
to place him in protective custody. When he filled out the lit‐
igation‐history portion of his form complaint, Greyer attested
that he had not “begun any other lawsuits in state or federal
court relating to [his] imprisonment.” As we noted, the form
warned that “[f]ailure to comply with this provision may re‐
sult in summary denial of your complaint.” Greyer’s state‐
ment, in the district court’s opinion, was inaccurate. By the
time his complaint was filed, he had been involved in two
other lawsuits in federal court. The first was his habeas corpus
petition, which he filed in 2007. See Greyer v. Chandler, No. 07‐
CV‐2010 (C.D. Ill. Jan. 22, 2007). The second was another civil
suit filed on the same day he filed the present action. See
Greyer v. Ill. Dep’t of Corr., No. 17‐CV‐1133 (S.D. Ill. Oct. 20,
2017). Neither of those cases qualified as a “strike” under the
PLRA, and it is undisputed that had he disclosed them,
Greyer could have proceeded with this suit in forma pauperis.
He therefore had nothing to gain from hiding these suits from
the district court.
The court nevertheless issued a show‐cause order requir‐
ing Greyer to explain why he had omitted these cases from his
Nos. 18‐1290, 18‐1459 5
litigation history, and why the court should not dismiss this
case as a sanction for fraud on the court. Greyer explained in
response that he suffers from mental illness and as a result he
takes psychotropic medications. Additionally, his capacity to
read and write is extremely limited. Because of his literacy
problem, he has had to recruit other prisoners to help him pre‐
pare his filings in this case. He manages this by bartering his
food for legal aid. Critically, his near illiteracy prevents him
from being able properly to “asses[s] what has been written
for him.” Greyer concluded his explanation with a renewed
plea for recruited counsel, stating that he was in “dire need”
of a lawyer’s help.
The district court made no findings about the truth or fal‐
sity of Greyer’s statements. It found his answers non‐respon‐
sive to the “straightforward question requiring a simple an‐
swer” posed by the show‐cause order. Accordingly, the dis‐
trict court dismissed the case with prejudice as a sanction for
fraud on the court, citing Hoskins v. Dart, 633 F.3d 541 (7th Cir.
2011). The judge made no explicit findings about whether
Greyer’s omissions were either intentional or material, as re‐
quired for a finding of fraud. See id. at 543.
B
Our other case comes from Michael Johnson, another
Dixon inmate, who filed his complaint on December 18, 2017,
alleging numerous unconstitutional conditions of confine‐
ment. He too filed a motion to proceed in forma pauperis. John‐
son has a rather extensive prison‐litigation history, most of
which he included (or attempted to include) on the litigation‐
history form included with his complaint.
6 Nos. 18‐1290, 18‐1459
That form required Johnson to “[l]ist ALL lawsuits you
(and your co‐plaintiffs, if any) have filed in any state or fed‐
eral court (including the Central and Southern Districts of Il‐
linois).” In response, Johnson listed varying amounts of infor‐
mation about eight earlier suits that he had filed. While he
was able to give full information about his most recent and
still‐pending cases, the other case information sheets are rid‐
dled with holes. For example, Johnson listed one case as hav‐
ing been filed “in 2014 or 2015.” Another he stated was filed
in “U.S. District Court ???”; he could not remember the name
of the assigned judge. And that was not his only lapse: in four
of the eight cases Johnson listed, there was some piece of re‐
quired information that he expressly stated he could not re‐
member.
The district court, however, was on the job. It identified
three cases that it believed were missing from Johnson’s list:
Turner v. Wexford, No. 13 CV 3072 (C.D. Ill. Mar. 14, 2013);
Johnson v. Bennett, No. 14 CV 1210 (C.D. Ill. Apr. 14, 2016); and
Johnson v. Dalke, No. 17 CV 50265 (N.D. Ill. Nov. 6, 2017). Not‐
ing the number of cases Johnson had filed while imprisoned,
the district court believed that Johnson was an experienced
litigant who should have known not to leave any cases off the
required form. Because of these omissions, the district court
ordered Johnson to show cause why his suit should not be
dismissed with prejudice as a sanction for fraud on the court.
Johnson responded that he simply forgot about the cases
the district court identified, and their omission was a simple
mistake. He also objected to the district court’s characteriza‐
tion of himself as an “experienced” litigant, arguing that he
did not know how to litigate cases, but had turned to the
courts when he thought that others had violated his rights.
Nos. 18‐1290, 18‐1459 7
Johnson’s lack of know‐how is corroborated by the level of
success he has had in his prior lawsuits—zero. While Johnson
has never incurred a strike, he also never has won relief in any
of his cases, identified or unidentified. In his response, John‐
son also revealed another case, Johnson v. Haenitsch, No. 17 CV
50383 (N.D. Ill. Dec. 18, 2017), which he had filed on the same
day as this case.
The district court saw nothing in Johnson’s response that
warranted discharging the rule to show cause. It reiterated
that Johnson’s past cases made him an experienced litigant
and that he thus must have understood the importance of
providing complete information to the court. It found that the
(now four) omitted cases were filed at or around the same
time as other cases Johnson had listed, or around the time of
the present complaint, and thus Johnson should have remem‐
bered and included them. In order to “send a strong message
about the obligation to be truthful, ethical, and forthright” be‐
fore the court, the court concluded that dismissal with preju‐
dice was an appropriate sanction. It thought that Johnson’s
omissions were intentional, but it made no explicit findings
explaining why the omissions were material. See Hoskins, 633
F.3d at 543.
Both Greyer and Johnson timely appealed the district
court’s dismissal of their cases. We recruited counsel to assist
them on appeal and invited an amicus curiae to defend the de‐
fendants’ position, as no defendant was served prior to the
dismissal of either suit. We thank all counsel for their excellent
advocacy.
8 Nos. 18‐1290, 18‐1459
II
There is no doubt that courts have the power to dismiss a
lawsuit with prejudice as a sanction when a party violates a
discovery rule or disobeys a court order that allows the court
to control its docket or manage the flow of litigation. Hoskins,
633 F.3d at 543. As we said in Hoskins, that power applies with
equal force to the situation before us, in which a prisoner fails
to list her complete litigation history despite a complaint form
that calls for such disclosure. Id. at 544. Because district courts
have broad discretion in fashioning sanctions against liti‐
gants, we review their factual findings for clear error and their
choice of which sanctions to impose for an abuse of discretion.
Id. at 543.
But a court’s sanctioning power is not unbounded. Many
sanctions are authorized by the rules of civil procedure. See,
e.g., FED. R. CIV. P. 37(b) (discovery violations); 16(f) (failure to
obey a scheduling or other pretrial order); 41(b) (dismissal for
failure to comply with rules or court order). In the cases now
before us, however, the district court seems to have relied on
its inherent authority. The Supreme Court repeatedly has
“cautioned that the use of inherent powers should be ‘exer‐
cised with restraint and discretion.’” Trade Well Int’l v. United
Cent. Bank, 778 F.3d 620, 626 (7th Cir. 2015) (quoting Chambers
v. NASCO, Inc., 501 U.S. 32, 44 (1991)). The court’s inherent
sanctioning powers are “subordinate to valid statutory direc‐
tives and prohibitions.” Law v. Siegel, 571 U.S. 415, 421 (2014).
Courts must also evaluate the appropriateness of any given
sanction, especially the “draconian” sanction of dismissal
with prejudice. See Barnhill v. United States, 11 F.3d 1360,
1367–69 (7th Cir. 1993) (describing dismissal with prejudice as
a “draconian,” “severe,” “harsh,” “powerful,” “serious,” and
Nos. 18‐1290, 18‐1459 9
“extreme” sanction for a party’s “contumacious” miscon‐
duct). As we have stressed, in all but the most extreme situa‐
tions courts should consider whether a lesser sanction than
dismissal with prejudice would be appropriate. See Oliver v.
Gramley, 200 F.3d 465 (7th Cir. 1999) (collecting cases). Most
importantly, courts must make factual findings that ade‐
quately support any use of their inherent sanctioning powers.
The question here is whether Greyer and Johnson commit‐
ted fraud on the court through their omissions, and in partic‐
ular whether those omissions were both intentional and ma‐
terial. Hoskins, 633 F.3d at 543. The district court’s brief orders
do not address those points. In Greyer’s case, the court said
nothing about intentionality or materiality, and it is hard to
infer such findings from what it did discuss. In Johnson’s case,
while the court indicated its belief that his omissions were in‐
tentional, it offered no explanation for why those omissions
were material.
A
The district court believed that Greyer’s reply to its show‐
cause order was unresponsive to the question why he had
omitted his litigation history. But, taken in context, that is ex‐
actly what Greyer addressed. While Greyer never specifically
said “I did not list those cases because …,” he did fully explain
the circumstances that led to the omissions. When viewed in
the liberal light in which we must take pro se pleadings, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), Greyer’s explanation
for his failures is plain: his mental health issues and illiteracy
created a situation in which he did not fully understand what
was being asked of him, and thus the omissions were inad‐
vertent.
10 Nos. 18‐1290, 18‐1459
And that is not all. A lawyer might have thought that both
of the cases Greyer omitted fell outside the scope of the re‐
quest in the form. Whether a habeas corpus petition is a case
“relating to [one’s] imprisonment” (in the sense of conditions
of confinement), as opposed to the validity of the conviction
or sentence, has been the subject of attention in the Supreme
Court for years. See, e.g., Skinner v. Switzer, 562 U.S. 521 (2011);
Wilkinson v. Dotson, 544 U.S. 74 (2005); Heck v. Humphrey, 512
U.S. 477 (1993); Preiser v. Rodriguez, 411 U.S. 475 (1973). This is
especially important in the current setting, because habeas
corpus petitions do not give rise to a strike under the PLRA.
See Walker v. O’Brien, 216 F.3d 626, 633–34 (7th Cir. 2000)
(holding that “if a case is properly filed as an action under 28
U.S.C. §§ 2241, 2254, or 2255, it is not a ‘civil action’ to which
the PLRA applies.”). Understandably, someone with no legal
training might not draw the conclusion that he must include
his habeas corpus petition on a list of cases “relating to [his]
imprisonment.” And Greyer’s other lawsuit had not yet “be‐
gun” when he filled out the PLRA form, as it was filed con‐
temporaneously with this case.
The district court’s apparent conclusion that Johnson’s
omissions were intentional is similarly based on erroneous
factual conclusions. Granted, Johnson omitted two earlier
cases that he should have included on the form: Johnson v. Ben‐
nett, No. 14 CV 1210 (C.D. Ill. Apr. 14, 2016); and Johnson v.
Dalke, No. 17 CV 50265 (N.D. Ill. Nov. 6, 2017). Nonetheless,
neither one gave rise to a strike: Johnson voluntarily dis‐
missed Bennett after surviving a motion to dismiss on exhaus‐
tion grounds; and he voluntarily dismissed Dalke after suc‐
cessfully getting beyond the screening process. The other two
missing cases identified by the district court—Turner v. Wex‐
ford, No. 13 CV 3072 (C.D. Ill. Mar. 14, 2013); and Johnson v.
Nos. 18‐1290, 18‐1459 11
Haenitsch, No. 17 CV 50383 (N.D. Ill. Dec. 18, 2017)—appear
not to fall within the scope of the question on the form. It
seems that Johnson was not even a plaintiff in Turner. Alt‐
hough his name was listed on the court’s docket, he did not
sign the complaint or take any other action to suggest that he
wished to be a part of that case. The court in Turner realized
that Johnson (as well as another person apparently named by
Turner) had not done anything to suggest that they wished to
be involved in that lawsuit and dismissed them immediately.
It is not sanctionable conduct to fail to list a case into which
one was conscripted when the instruction is to list cases that
one has “filed.” Nor did Haenitsch meet the description of the
cases for which the form required disclosure. It requested in‐
formation only about cases that were “filed,” and Haenitsch
had not yet been filed with the district court when Johnson
swore to the form’s accuracy.
Given these errors, the record as it now stands does not
contain enough evidence to support the district court’s belief
that Johnson intentionally omitted those four cases. That find‐
ing is also undercut by Johnson’s frank admission on the form
that he did not remember all the information about his past
cases. On every case that was not currently active, Johnson re‐
sponded to at least one of the form’s questions with either
question marks or an explicit statement that he could not re‐
member the requested information. It is not a great leap to
think that Johnson may have unintentionally forgotten a cou‐
ple of prior cases.
B
Even if, for the sake of argument, we were to assume that
the district court’s findings about Greyer’s and Johnson’s in‐
tent are not clearly erroneous, the court erred by failing to
12 Nos. 18‐1290, 18‐1459
make a ruling on materiality in each of these cases. Materiality
is a context‐specific inquiry, but “[u]nder any understanding
of the concept, materiality ‘look[s] to the effect on the likely or
actual behavior of the recipient of the alleged misrepresenta‐
tion.’” Universal Health Servs., Inc. v. United States, 136 S. Ct.
1989, 2002 (2016) (quoting 26 R. Lord, Williston on Contracts
§ 69:12, p. 549 (4th ed. 2003) (Williston)); see also Air Wisconsin
Airlines Corp. v. Hoeper, 571 U.S. 237, 250 (2014) (materiality of
a falsehood depends on “the identity of the relevant reader or
listener,” but that identity “varies according to context”).
Although we know that an omission must be material be‐
fore a district court may sanction a litigant by dismissing her
case with prejudice, we have not yet had the occasion to dis‐
cuss what makes an omission material for purposes of section
1915(g). As usual, however, we begin with the maxim that
“[i]t is not a judge’s job to add to or otherwise re‐mold statu‐
tory text to try to meet a statute’s perceived policy objectives.”
Fourstar v. Garden City Group, Inc., 875 F.3d 1147, 1152 (D.C.
Cir. 2017) (Kavanaugh, J.). Thus, while Congress hoped that
the PLRA would lessen the amount of baseless prison litiga‐
tion, it is the courts’ job only to implement the statute.
The text offers guidance about the meaning of materiality
for this purpose. Two provisions of the PLRA detail the dis‐
trict court’s role in screening prisoner complaints. 28 U.S.C.
§ 1915(g) states that:
In no event shall a prisoner bring a civil ac‐
tion or appeal a judgment in a civil action or
proceeding under this section if the prisoner
has, on 3 or more prior occasions, while incar‐
cerated or detained in any facility, brought an
action or appeal in a court of the United States
Nos. 18‐1290, 18‐1459 13
that was dismissed on the grounds that it is friv‐
olous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner
is under imminent danger of serious physical
injury.
Relatedly, 28 U.S.C. § 1915(e)(2) outlines situations that
“shall” lead to dismissal “at any time if the court determines”
that they obtain: first, if “the allegation of poverty is untrue,”
and second, if the action or appeal is frivolous, malicious, fails
to state a claim, or seeks monetary relief from an immune de‐
fendant. See also 28 U.S.C. § 1915A (requiring mandatory
screening of prisoner complaints).
We can deduce what materiality must mean from these
provisions. If an undisclosed past case was dismissed as friv‐
olous, malicious, or failed to state a claim (i.e., it was or should
have been a strike), then omission of that case is material. An
omitted past case would also be material if it has significant
factual overlap with the currently‐filed case, because that
could suggest the current case is frivolous or malicious. See
Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003) (noting
that maliciousness in this context means an intent to harass an
opposing party). But there are other possibilities that the stat‐
ute does not address: cases that have no bearing on eligibility
for in forma pauperis status; or cases that are not frivolous or
malicious; or cases that escaped wholesale dismissal for fail‐
ure to state a claim, see Turley v. Gaetz, 625 F.3d 1005, 1012 (7th
Cir. 2010) (no strike when one of several claims is dismissed);
or cases that did not attempt to recover from someone with
immunity.
14 Nos. 18‐1290, 18‐1459
It is notable that in the majority of cases in which we have
affirmed dismissal either with or without prejudice, the prob‐
lem was a material failure to disclose—that is, a failure to re‐
veal a case that led to a strike, or that demonstrated that the
prisoner had already struck out. See, e.g., Ozsusamlar v. Szoke,
669 F. App’x 795, 796 (7th Cir. 2016); Postlewaite v. Duncan, 668
F. App’x 162, 163–64 (7th Cir. 2016); Ramirez v. Barsanti, 654 F.
App’x 822, 823 (7th Cir. 2016); Thompson v. Taylor, 473 F. App’x
507, 509 (7th Cir. 2012); Sloan v. Lesza, 181 F.3d 857, 858 (7th
Cir. 1999); see also Jackson v. Fla. Depʹt of Corr., 491 F. App’x
129, 132 (11th Cir. 2012).
The one exception to this pattern appears to be Hoskins.
But in that case Hoskins had simultaneously filed five civil
rights complaints, and on each complaint form he failed to
disclose “three [prior] federal civil rights cases on similar
claims, all of which he was still litigating.” Hoskins, 633 F.3d at
543 (emphasis added). Instead, Hoskins stated on every form
that he had no litigation history at all. Although none of
Hoskins’s undisclosed cases were strikes, they involved “sim‐
ilar claims” as his current suits and so some of the five later‐
filed suits may have been “frivolous or malicious.” 28 U.S.C.
§ 1915(e)(2); Lindell, 352 F.3d at 1109. We found no abuse of
discretion on those facts in a dismissal with prejudice. Hoskins
also illustrates one final point: district courts remain empow‐
ered to sanction extreme bad‐faith conduct. Nonetheless, they
should proceed carefully before imposing severe sanctions on
prison litigants who omit portions of their litigation histories,
if those omissions do not add strikes and thus have no bearing
on the prisoner’s ability to proceed under the PLRA.
Nos. 18‐1290, 18‐1459 15
Turning back to the appeals before us, we have no trouble
concluding that none of the cases omitted by Greyer or John‐
son meet the applicable standards for materiality. Greyer’s
lone prior case was a habeas corpus petition and thus not one
that could yield a strike; the other case identified by the dis‐
trict court had not yet begun when Greyer swore to the accu‐
racy of this complaint. And as we have explained, all but two
of Johnson’s omitted cases were either not strikes, were con‐
temporaneously filed, or did not actually involve him. While
Johnson technically should have mentioned the remaining
two, his failure to do so was not material, as he had dismissed
both of those cases voluntarily after favorable rulings. It is no‐
table that neither Greyer nor Johnson has accumulated any
strikes throughout his time litigating in the federal courts.
C
In the PLRA context as elsewhere, it is essential to distin‐
guish between a negligent, reckless, or even willful act, on the
one hand, and a fraudulent act, on the other. A finding of
fraud opens a litigant to additional and heightened penalties
and thus requires a showing of fraudulent intent. (Fraud alle‐
gations also trigger a more demanding pleading standard, see
FED. R. CIV. P. 9(b).)
In contracts, for example, a party might intentionally
breach a contract, even in a “widespread” or “systematic”
way, but in a manner that is not necessarily fraudulent. Green‐
berger v. GEICO Gen. Ins. Co., 631 F.3d 392, 399–400 (7th Cir.
2011). A finding of fraud requires “that the defendant en‐
gaged in deceptive acts or practices distinct from any under‐
lying breach of contract.” Id. at 399. The difference between an
intentional breach and a fraudulent “deception at the time the
promise is made,” Corley v. Rosewood Care Ctr., Inc. of Peoria,
16 Nos. 18‐1290, 18‐1459
388 F.3d 990, 1007 (7th Cir. 2004), can be the deciding factor
between civil and criminal liability. See, e.g., U.S. ex rel.
O’Donnell v. Countrywide Home Loans, Inc., 822 F.3d 650 (2d
Cir. 2016) (overturning findings of mail and wire fraud viola‐
tions for “selling poor‐quality mortgages to government enti‐
ties” because there was no evidence of deceptive intent at the
time of contracting).
In the law of torts, a fraudulent misrepresentation can lead
to an expanded array of damages. An innocent or negligent
misrepresentation gives rise only to liability for “the differ‐
ence between the value of what the other has parted with and
the value of what he has received in the transaction.” Restate‐
ment (Second) of Torts § 552C (1977). But a fraudulent mis‐
representation allows a plaintiff to recover “benefit of the bar‐
gain” damages as well. Id. § 549; see also Roboserve, Inc. v. Kato
Kagaku Co., 78 F.3d 266, 274 (7th Cir. 1996) (“Where a misrep‐
resentation induced the victim to consummate the bargain,
benefit‐of‐the‐bargain damages are appropriate to give the
victim the rewards he reasonably expected under the con‐
tract.”).
The distinction between negligence and fraud is just as im‐
portant for the PLRA as it is for the laws of contract or torts.
When appropriate, the district courts must ensure that a pris‐
oner’s negligent or even reckless mistake is not improperly
characterized as an intentional and fraudulent act.
III
Twenty years ago, this court lamented that “[t]he federal
judiciary needs (but lacks) a central database of litigants to
whom § 1915(g) applies.” Sloan, 181 F.3d at 858. Since that
Nos. 18‐1290, 18‐1459 17
time, recordkeeping has improved, though it is still not per‐
fect. The district courts have commendably developed forms
to facilitate the handling of pro se litigation filed by prisoners
and nonprisoners alike. The courts must ensure, however,
that those forms stay within the boundaries of Rule 83 (i.e. that
they do not add burdens beyond those authorized in the stat‐
ute for litigants). The forms also need to be realistic: prisoners
are constantly complaining that their legal papers have been
confiscated or lost, and it seems likely that this happens from
time to time. Perhaps something as simple as a catch‐all ques‐
tion would avoid the problems we have seen here: “While you
were incarcerated or detained in any facility, have you filed
any case in any court of the United States that was dismissed
as frivolous, malicious, or for failure to state a claim upon
which relief can be granted? List all such cases that you can
remember and indicate the court where they were filed to the
best of your ability.” The answer to such a question would
give the crucial information: has this person struck out, for
purposes of proceeding in forma pauperis, or not? It would also
reveal, if the new case is dismissed on one of those grounds,
whether the person has accumulated another strike.
***
In each of the two cases before us, the district court rested
its conclusion that the plaintiffs committed fraud on flawed
factual findings and an overly broad view of what constitutes
a material omission. For that reason, we VACATE the sanctions
orders against both Greyer and Johnson and REMAND the
cases to the district court for further proceedings consistent
with this opinion.