Richard A. Kalinowski v. MIKE BOND and JENNIFER WILSON

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3273
R ICHARD A. K ALINOWSKI ,
Plaintiff-Appellant,
v.
M IKE B OND and J ENNIFER W ILSON ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02-745-DRH—David R. Herndon, Judge.
____________
S UBMITTED F EBRUARY 3, 2004—D ECIDED F EBRUARY 19, 2004
____________
Before E ASTERBROOK , M ANION , and E VANS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. Richard Kalinowski, who
is confined at Big Muddy River Correctional Center under
the Illinois Sexually Dangerous Persons Act, 725 ILCS
205/1.01 to 12, filed this suit against persons who he asserts
deprived him of adequate access to the prison’s law library.
He wants $6 million in damages plus an injunction compel-
ling the prison to furnish six hours of library access 365
days per year. The district court dismissed the complaint on
multiple grounds, including failure to exhaust administra-
tive remedies. See 42 U.S.C. §1997e(a). Although the judge
used 28 U.S.C. §1915A to act peremptorily, failure to
employ administrative remedies is conceded, so invocation

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2 No. 02-3273
of what ordinarily would be an affirmative defense was
within the judge’s authority. See Walker v. Thompson, 288
F.3d 1005 (7th Cir. 2002). The judge added that the com-
plaint also came within 28 U.S.C. §1915(g). Three suits or
appeals that meet this definition require a prisoner to
prepay all filing fees for most future civil suits. See Lewis
v. Sullivan, 279 F.3d 526 (7th Cir. 2002). Three strikes and
you’re out, under the Prison Litigation Reform Act as well
as the rules of baseball, and this complaint was
Kalinowski’s third strike. The district court’s approach
supposes that Kalinowski is a “prisoner,” for the exhaustion
and three-strikes rules apply to prisoners only. District
judges disagree about whether persons detained as sexually
dangerous are “prisoners,” and we have not addressed that
issue until today.
Kalinowski contends that he is a “civil [sic] committed
person” and thus not a “prisoner” subject to the Prison
Litigation Reform Act. The word is a defined term: “As used
in this section, the term ‘prisoner’ means any person
incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of
parole, probation, pretrial release, or diversionary pro-
gram.” 28 U.S.C. §1915(h). Identical definitions appear
in 28 U.S.C. §1915A(c) and 42 U.S.C. §1997e(h). This lan-
guage speaks directly to persons held under the Illinois
Sexually Dangerous Persons Act. As we explained in Allison
v. Snyder, 332 F.3d 1076 (7th Cir. 2003), everyone covered
by this statute is a pretrial detainee: a person charged with
a felony, whose criminal proceedings are held in abeyance
during treatment for mental illness. See also, e.g., Allen v.
Illinois, 478 U.S. 364, 370 n.5 (1986); People v. Trainor, 196
Ill. 2d 318, 324-29, 752 N.E.2d 1055, 1059-62 (2001).
Pretrial detainees are “prisoners” for purposes of the PLRA
because they are in custody while “accused of . . . violations
of criminal law”.

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No. 02-3273 3
It is unnecessary to consider whether a person whose
criminal conviction has expired, and is held thereafter as
sexually dangerous, also is a “prisoner.” Such a person has
been “sentenced for” a crime, but the justification for on-
going custody is future dangerousness rather than (solely)
past criminality. See Kansas v. Crane, 534 U.S. 407 (2002).
Applying the PLRA ’s definition to such detainees may
be difficult. See Page v. Torrey, 201 F.3d 1136, 1139-40
(9th Cir. 2000) (post-expiration detainee is no longer a
“prisoner”). Cf. Perkins v. Hedricks, 340 F.3d 582 (8th
Cir. 2003) (person held on pure civil commitment is not
a “prisoner”); Troville v. Venz, 303 F.3d 1256, 1259-60
(11th Cir. 2002) (same); Kolocotronis v. Reddy, 247 F.3d
726, 728 (8th Cir. 2001) (person held on civil commitment
following verdict of not guilty by reason of insanity is not a
“prisoner”). For a person held on unresolved criminal
charges, however, there is no difficulty at all. Kalinowski
and others like him are “prisoners.” So this suit was rightly
dismissed for lack of exhaustion, and the appeal following
a frivolous complaint is yet another “strike.” See Newlin v.
Helman, 123 F.3d 429, 433 (7th Cir. 1997). (Lack of exhaus-
tion was not the complaint’s only failing; the district judge
deemed it frivolous on the merits, and nothing in the
appellate brief calls this into question.) Kalinowski must
prepay all filing fees for his future civil litigation unless he
demonstrates at the time of the suit’s commencement that
he “is under imminent danger of serious physical injury.” 28
U.S.C. §1915(g).
A FFIRMED .

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4 No. 02-3273
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-19-04

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