Author: Chris Gant, Associate Member, University of Cincinnati Law Review
The adage borrowed from baseball, “three strikes and you’re out,” is used in law in different contexts. Many states have enacted “three-strikes” laws to punish repeat offenders: under these laws, a criminal receives a much longer sentence on his third conviction.[1] Another example is found in the Prison Litigation Reform Act (PLRA), under which inmates are prohibited from receiving in forma pauperis[2] status if they have brought three or more civil claims seeking in forma pauperis status that were dismissed.[3] Thus, in the baseball context, a PLRA dismissal is considered a “strike,” and the denial of pauper status is the “out.” However, the analogy is problematic in the legal context. Unlike in baseball, where the umpire’s decision to call a strike is unreviewable, a party in court can appeal the lower court’s decision. This hiccup in the baseball analogy is the question that was argued on February 24, 2015 in front of the Supreme Court in the case of Coleman-Bey v. Tollefson. The question was whether, under the “three strikes” provision of the PLRA, a district court’s dismissal of a lawsuit counts as a “strike” while it is still pending on appeal or before the time for seeking appellate review has passed.
In this case, the Sixth Circuit Court of Appeals issued a ruling contrary to the majority of its sister circuits. The Sixth Circuit held that a dismissal of a PLRA civil suit, while on appeal, counts as a third strike under the PLRA, and therefore precluded Coleman-Bey from receiving pauper status on his fourth PLRA claim during the pendency of the appeal of the third claim. The Sixth Circuit’s holding should be rejected by the Supreme Court because dismissals should only count as strikes under the PLRA when the plaintiff has exhausted or waived his appellate rights. This is the better, nondiscriminatory ruling, especially in light of the relatively small burden that pauper status places on the courts and Congress’s intent with the PLRA to penalize frivolous litigation, not freeze out meritorious claims.
The PLRA and the Case of Coleman-Bey
The PLRA, found in 28 U.S.C. § 1915(g), states, “[i]n no event shall a prisoner bring a civil action . . . if the prisoner has, on 3 or more prior occasions, while incarcerated . . . brought an action . . . that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted . . . .”[4] Thus, the statute is ambiguous as to precisely when dismissals are to be counted as strikes. Coleman-Bey’s first strike was a suit dismissed because the magistrate judge, whose report and recommendation the district court adopted, found the suit to be “frivolous and without merit.”[5] The second strike was a complaint dismissed for failure to state a claim.[6] The third suit was again dismissed for the same reason. Coleman-Bey then appealed the third dismissal. While the third claim was on appeal, Coleman-Bey brought a fourth claim against prison officials for a number of charges, including denying him access to courts and misappropriating his mail.[7] The trial court held that his third lawsuit, although still pending on appeal, counted as a strike, and so Coleman-Bey could not receive pauper status because he had used his three strikes under PLRA. Being unable to pay the court fees, Coleman-Bey’s fourth claim was dismissed.
The Sixth Circuit affirmed the dismissal and the district court’s interpretation of the PLRA, reasoning that the third suit, even though it was still on appeal, counted as a strike because the “literal reading of [the PLRA] requires district courts to count as strikes cases that are dismissed on the grounds enumerated in the provision even when pending on appeal.”[8] In support of its literal reading, the court reasoned that because the PLRA does not state that the dismissal must be final in all courts of the United States, it must mean that a district court dismissal is to be considered a strike.[9] Further, the court looked to how judgments are treated for purposes of res judicata: under res judicata, cases on appeal have a preclusive effect until they are reversed or vacated.[10] Finally, the court unpersuasively reasoned that the litigant is unharmed by the dismissal because interpreting it as a strike does not affect his ability to appeal the third strike. However, the court ignored the fact that this potentially bars a legitimate future claim from being brought because even if the strike is reversed on appeal, the inmate may not be able to bring a later legitimate claim due to evidence being destroyed, a statute of limitations running, or any other way that the passing of time may prejudice the inmate.[11]
Why the Sixth Circuit’ Minority Rule Should be Overturned
Shortly after enactment of the PLRA, the Fifth Circuit interpreted the three-strikes provision in Adepegba v. Hammons.[12] In Adepegba, the court ruled that a dismissal should not count until the petitioner has exhausted or waived his appeals.[13] Following the Adepegba decision, all other circuits that have addressed the question except two—the Sixth and Seventh— have followed suit.[14] Thus, most of the circuit courts have found that “Congress intended § 1915(g) only to penalize litigation that is truly frivolous, not to freeze out meritorious claims or ossify district court errors.”[15] This is the ultimate problem with the Sixth Circuit’s ruling. In a situation in which a district court dismisses a prisoner’s pauper claim, but in which the appellate court eventually reverses the dismissal, the Sixth Circuit’s holding in Coleman-Bey would bar a potentially meritorious fourth claim while the (also meritorious) third claim was under review, thus ultimately preserving any potential district court error on the fourth claim. As the Ninth Circuit has reasoned, the situation described above would effectively eliminate the appellate function because the inmate is still prejudiced by the incorrect dismissal of the third claim. If Congress had intended such an unusual result, it would have clearly said so in the PLRA.[16]
The majority of circuits’ rulings are far more convincing than the Sixth Circuit’s. The Sixth Circuit relied on an analogy to res judicata. However, res judicata and the issue of interpretation of the PLRA are not analogous. Preclusion of a claim until an appellate decision is reached makes sense in the res judicata context, because it would be illogical for a party to succeed on the same issue in a separate case while the issue is being decided on appeal. Here, however, the prisoner’s claims are presumably different from one another, so the notion behind res judicata does not apply in this context.
Moreover, in an amicus curiae brief submitted to the Supreme Court in Coleman-Bey, thirty-three professors pointed out, “meritorious litigation by prisoners is not as rare as conventional wisdom would have it. Prisoners obtain relief by judgment or settlement in over 10 percent of cases.”[17] This supports the notion that barring a potentially meritorious claim is a legitimate risk that should be avoided. Additionally, the proverbial argument about the “floodgates of litigation opening,” i.e. that the federal court system will be overrun by frivolous suits, is quelled by other requirements in the PRLA such as merits screening by courts, administrative remedies, limitations on attorney’s fees, and the cost of filing suit.[18] In other words, “the three strike provision is not the linchpin of the PRLA,” but rather among “a long line of obstacles, both legal and practical, that a prisoner must surmount before having a lawsuit heard on the merits.”[19] Thus, allowing a prisoner to enter a claim while one of his strikes is being appealed is not going to bombard the federal courts with frivolous litigation.
Three FINAL Strikes and You’re Out
Because the American legal system is not played out on a diamond field with bats, balls, and gloves, the notion of “three strikes and you’re out” is better left for baseball. As demonstrated above, a district court is unlike an umpire and its decisions do not have unassailable finality—district courts make errors and are subject to review. Because the Sixth Circuit’s interpretation of the PLRA has potential to bar worthy claims, adopting it nationwide would effectively eviscerate the circuits’ appellate function. Furthermore, because the federal courts would not be bombarded with frivolous claims under the majority interpretation of the PLRA, the Supreme Court should overrule the Sixth Circuit’s decision in Coleman v. Tollefson and conclude that the dismissal of a PLRA suit must be final in order to count as a strike.
[1] See States With Three Strike Laws, Three Strikes and You’re Out, http://www.threestrikes.org/3strikestates.html (last visited Mar. 26, 2015).
[2] In forma pauperis status allows someone with limited funds to proceed in a court without having to pay court costs such as filing fees.
[3] 28 U.S.C. 1915(g) (1996).
[4] 28 U.S.C. § 1915(g) (1996).
[5] Coleman v. Lentin, No. 2:92-cv-120, 1992 U.S. Dist. LEXIS 23111 (W.D. Mich. Aug. 31, 1992).
[6] Coleman v. Kinnunen, No. 2:05-CV-256, 2008 U.S. Dist. LEXIS 20646 (W.D. Mich. Mar. 17, 2008).
[7] Coleman v. Sweeney, 2009 U.S. Dist. LEXIS 93997, 5 (W.D. Mich. Oct. 8, 2009).
[8] Coleman v. Tollefson, 733 F.3d 175, 177 (6th Cir. 2013).
[9] Id.
[10] Id. at 177-178.
[11] Id. at 178.
[12] Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
[13] Id. at 387.
[14] See Ball v. Famiglio, 726 F.3d 448, 465 (3d Cir. 2013); Henslee v. Keller, 681 F.3d 538, 543-44 (4th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1100 (9th Cir. 2011); Smith v. Veterans Admin., 636 F.3d 1306, 1310-11 (10th Cir. 2011); Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010); Thompson v. Drug Enforcement Admin., 492 F.3d 428, 432-33, 377 U.S. App. D.C. 129 (D.C. Cir. 2007); Campbell v. Davenport Police Dep’t, 471 F.3d 952, 953 (8th Cir. 2006); Michaud v. City of Rochester, No. 00-1263, 2000 U.S. App. LEXIS 33967, 2000 WL 1886289, at *2 n.1 (1st Cir. Dec. 27, 2000).
[15] Coleman, 733 F.3d 175, 180 citing Adepegba, 103 F.3d 383, 388.
[16] Silva, 658 F.3d at 1098-99.
[17] Brief for Thirty-Three Professors, et al. as Amici Curiae Supporting Petitioner, Coleman v. Tollefson, 135 S. Ct. 43 (2014).
[18] Id. at 14-19.
[19] Id. at 19.
