Prisoner litigation; Leave to proceed in forma pauperis (IFP); The Prison Litigation Reform Act (PLRA); The three-strikes rule (28 USC § 1915(g)); Coleman v Tollefson; Prior dismissal based on Eleventh Amendment immunity; Crump v Blue; Applicability of issue preclusion

[This appeal was from WD-MI.] Holding that the three-strikes rule (§ 1915(g)) did not preclude plaintiff-state prisoner (Henderson) from proceeding IFP in this action, the court vacated the district court’s ruling denying him leave to do so, and remanded. Henderson’s action asserted constitutional claims against defendants-County and sheriff. He argued on appeal that “two of his purported strikes were actions that included claims dismissed on Eleventh Amendment immunity grounds.” Under Crump, dismissal of an action in which the complaint included claims dismissed on those grounds “does not generally count as a strike[.]” The first prior action at issue was referred to as County of Kent I. There, the “district court dismissed the damages claims because the prosecutors were state agents, and the state was immune from such claims in federal court under the Eleventh Amendment. It did not find that Henderson frivolously or maliciously ignored this immunity defense.” Thus, County of Kent I did “not count as a strike under the PLRA.” The County asserted that the district court’s dismissal of the “official-capacity claims also bore traces of ‘failure-to-state-a-claim reasoning,’ so the action can still count as a strike. But the district court unequivocally dismissed the damages claims solely on Eleventh Amendment grounds, and we look only to what the dismissing court did, not what it could have done.” The second prior action, referred to as Conrad, also involved “official-capacity claims for damages against a state prosecutor” and the district court ruled that the Eleventh Amendment barred the suit. It also again “did not find that Henderson frivolously or maliciously ignored this immunity defense.” The court rejected the County’s argument that a statement the district court made “set out alternative holdings, with the latter making Conrad a strike notwithstanding the former.” Given that the Eleventh Amendment is a jurisdictional bar, “after the district court concluded that [it] barred Henderson’s official-capacity claims for damages, it no longer had jurisdiction over them.” The court held that Conrad did “not count as a strike under the PLRA either.” It also rejected the County’s claim that two other actions offered “‘independent bases to establish Henderson as a three-strike litigant’” and concluded that issue preclusion did not prevent him “from challenging whether County of Kent I and Conrad count as strikes now.”