In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-3273

RICHARD A. KALINOWSKI,

Plaintiff-Appellant,

v.

MIKE BOND and JENNIFER WILSON,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Illinois.

No. 02-745-DRH—David R. Herndon, Judge.

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SUBMITTED FEBRUARY 3, 2004—DECIDED FEBRUARY 19, 2004

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Before EASTERBROOK, MANION, and EVANS, Circuit

Judges.

EASTERBROOK, 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 compelling 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 administrative 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
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 complaint 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 program.” 28 U.S.C. §1915(h). Identical definitions appear

in 28 U.S.C. §1915A(c) and 42 U.S.C. §1997e(h). This language 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”.
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 ongoing 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 exhaustion 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).

AFFIRMED.
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