The Prison Litigation Reform Act’s (PLRA) “three-strikes” rule; 28 USC § 1915(g); Crump v Blue; Whether the district court had jurisdiction to issue a clarifying order

[This appeal was from the WD-MI.] The court held that the district court erred by denying plaintiff-Taylor’s motion to proceed in forma pauperis where the PLRA’s “three-strikes” rule did not apply because he only had two PLRA strikes. Taylor, a prisoner, sued several prison employees for allegedly violating his constitutional rights. He moved to proceed in forma pauperis. The district court denied his motion under the “three-strikes” rule, finding that Taylor had previously filed four lawsuits that were dismissed for being frivolous, malicious, or for failing to state a claim. It then dismissed the case when he did not pay his filing fee. He timely appealed. Nearly two months later, the district court entered a second order attempting to clarify its three-strike ruling. Taylor admitted on appeal that two of his prior cases were valid strikes. The court first considered the issue of jurisdiction. Generally, filing the appeal would end the district court’s jurisdiction. But a district court “retains limited jurisdiction to take actions ‘in aid of appeal.’” The court held that the district court did not have “jurisdiction to issue its clarifying order. In its original order,” it ruled that either one of two of Taylor’s prior suits could constitute his third PLRA strike. It reversed course in its clarifying order, asserting for the first time that a third suit, not either of the two it previously relied on, “was strike three. In doing so, the clarifying order sought to materially revise [its] earlier written decision.” Thus, this clarifying opinion was “‘null and void” and could not be considered on appeal. That left the court to consider only the two cases the district court cited in its original order. Pursuant to Crump, the court held that neither case qualified as a strike. One was dismissed based on Eleventh Amendment immunity, and dismissal on this basis “is not a PLRA strike unless a court otherwise determines that the action is frivolous or malicious.” No such finding was made in the case at issue, so that suit was not a strike. As to the other case, “for a suit to constitute a PLRA strike, a court must have dismissed ‘all of its claims’ for being frivolous, malicious, or for failing to state a claim.” The district court in the second case “dismissed at least some of Taylor’s claims—those for damages—on Eleventh Amendment grounds. So” this case also did not constitute a strike. Vacated and remanded.