Law360 (November 12, 2026, 6:11 PM EST) -- A Sixth Circuit panel has revived a Michigan prisoner's constitutional lawsuit, finding that two previously dismissed lawsuits did not count as strikes under a federal law restricting inmates' ability to file cases without paying court fees, while one judge urged Congress to close loopholes that allow prisoners to repeatedly bring meritless claims.

In a published unanimous decision Tuesday, a three-judge panel vacated a Michigan federal court's dismissal of Tyrelle Motray Henderson Jr.'s lawsuit, concluding that claims dismissed on 11th Amendment immunity grounds generally do not count toward the three strikes permitted under the Prison Litigation Reform Act.

The panel determined that Henderson had only one qualifying strike from the three cases identified by the district court, rather than the three required to prevent him from proceeding in forma pauperis, which allows prisoners to pay filing fees over time or in some circumstances avoid them entirely.

"The dismissal premised on Eleventh Amendment immunity does not appear on the list of [§ 1915(g)'s] grounds for a cognizable strike," U.S. Circuit Judge Richard Allen Griffin wrote for the panel, quoting the court's 2024 decision in Crump v. Blue.

Although the panel agreed that Henderson could proceed without prepaying the filing fee, U.S. Circuit Judge John K. Bush wrote separately to express concern that existing law allows prisoners to file repeated lawsuits without accumulating strikes that would restrict future litigation.

"This case arose from a prisoner with a proclivity for filing pro se lawsuits," Judge Bush wrote in a concurrence. "Congress tried to address such complaints through legislation codified at 28 U.S.C. § 1915(g) and § 1915A. But as this case demonstrates, Congress may need to examine this issue again."

Henderson sued Michigan and Kent County Sheriff Michelle LaJoye-Young, asserting constitutional violations and requesting permission to proceed without paying the full filing fee upfront.

U.S. District Judge Phillip J. Green denied Henderson's request after determining that three earlier lawsuits qualified as strikes under the PLRA.

Judge Green also concluded that Henderson did not qualify for the statute's exception allowing prisoners facing imminent danger of serious physical injury to proceed despite having three strikes.

Because Henderson had not paid the filing fee, the district court dismissed his lawsuit without prejudice.

On appeal, Henderson challenged the classification of two previous lawsuits as strikes, arguing that both included claims dismissed because of 11th Amendment immunity.

Under the PLRA, prisoners who have filed three or more federal lawsuits or appeals dismissed as frivolous, malicious or for failure to state a claim generally can't proceed in forma pauperis unless there's imminent danger of serious physical injury.

The panel explained that an entire lawsuit counts as a strike only when every claim is dismissed on one of those three grounds.

The first disputed lawsuit, Henderson v. County of Kent, involved claims against two state prosecutors. The district court dismissed Henderson's official-capacity damages claims because the prosecutors were state officials protected by 11th Amendment immunity.

Judge Griffin said that dismissal did not qualify as a strike because the court had not found Henderson's claims frivolous or malicious.

The county argued that the earlier decision also contained reasoning suggesting Henderson had failed to state a claim, but the panel rejected that interpretation.

"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," Judge Griffin wrote.

The second disputed case, Henderson v. Conrad, involved similar official-capacity damages claims against a state prosecutor.

Although the district court said those claims were barred by the 11th Amendment and failed to state a claim, the Sixth Circuit concluded that the immunity finding was the main factor.

The panel explained that the district court had discussed the immunity issue in detail but provided virtually no substantive analysis of the merits.

Because 11th Amendment immunity deprived the court of jurisdiction over those claims, any alternative determination that Henderson failed to state a claim would have exceeded the court's authority, the panel said.

"Conrad therefore does not count as a strike under the PLRA either," Judge Griffin wrote.

The county also identified two additional lawsuits that it argued independently established Henderson's status as a three-strike litigant.

However, the panel found that one of those cases, Henderson v. Peterson, couldn't count because it was dismissed in March, nearly eight months after Henderson filed the lawsuit at issue.

The panel explained that qualifying strikes must be counted as of the date a prisoner files a complaint and requests permission to proceed in forma pauperis.

The county separately argued that Henderson was barred from challenging the classification of his earlier cases because a district court had previously determined that they counted as strikes.

The panel rejected that argument, finding that issue preclusion didn't apply because the parties had not actually litigated the question in the earlier proceeding.

Judge Bush, in his concurrence, criticized what he described as gaps in the PLRA's three-strikes provision.

Judge Bush agreed that existing Sixth Circuit precedent required the court to find that Henderson had fewer than three strikes but argued that Congress should consider expanding the circumstances under which dismissed lawsuits count toward the restriction.

Judge Bush noted that Henderson had filed numerous federal lawsuits that were dismissed for failure to prosecute as well as several state court cases that were dismissed for failure to serve defendants.

Those dismissals generally don't qualify as strikes under the statute.

Judge Bush suggested that district courts could sometimes address the problem by screening complaints on their merits rather than dismissing them on sovereign immunity grounds when the law permits.

Such an approach could result in qualifying strikes for prisoners who repeatedly file legally deficient complaints, Judge Bush said.

"Perhaps more importantly, Congress might fill the apparent lacunae in § 1915(g) by adding sovereign immunity, failure to prosecute, and failure to serve as additional reasons that a case may count as a strike," Judge Bush wrote.

The panel's decision does not address the merits of Henderson's underlying constitutional allegations. Instead, it returns the case to the district court for further proceedings.

The parties did not immediately respond to a request for comment Thursday.

U.S. Circuit Judges Richard Allen Griffin, John K. Bush and John B. Nalbandian sat on the panel for the Sixth Circuit.

Henderson is represented by Kellen McCoy of the Lawyers' Committee for Civil Rights Under Law and Melanie Fontes of Orrick Herrington & Sutcliffe LLP.

Kent County and LaJoye-Young are represented by Neil E. Youngdahl of Varnum LLP.

The case is Tyrelle Motray Henderson Jr. v. Kent County Michigan, case number 25-1845, in the U.S. Court of Appeals for the Sixth Circuit.

--Editing by Haylee Pearl.

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