Argument preview: When does a prisoner suit become a “strike”?
on Feb 20, 2015 at 1:06 pm
When the Supreme Court hears argument Monday morning in Coleman-Bey v. Tollefson, it will confront yet another in a long line of complicated procedural questions created by the “three strikes” provision of the Prison Litigation Reform Act of 1996 (PLRA).That provision generally precludes courts from conferring in forma pauperis status upon prisoner-plaintiffs “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” The specific issue before the Court in this case, which has divided the courts of appeals, is whether a district court’s dismissal of a prior lawsuit counts as a strike if that earlier ruling is still under appeal at the time the new case is filed. But to answer that question, the Justices will almost certainly have to tackle the larger question raised by the PLRA: when does a strike “happen”?
André Lee Coleman-Bey is an inmate in a Michigan state prison who has been incarcerated since 1983 due to his convictions for armed robbery and a series of related offenses. In December 2010, he filed a 42 U.S.C. § 1983 suit against six prison officials, claiming that they were interfering with his right of access to the courts, and moved to proceed in forma pauperis.
The district court denied Coleman-Bey’s motion, ruling that he was subject to the PLRA’s “three strikes” provision because three prior lawsuits he had brought while imprisoned had been dismissed. In addition to two earlier suits that had long since become final, the district court held that a third suit – captioned as Coleman v. Sweeney – counted as a strike even though the district court’s order dismissing the suit was still under appeal at the time Coleman-Bey filed the current lawsuit. Thus, the court ordered Coleman-Bey to pay the $350 filing fee within twenty-eight days. When he failed to do so, the court dismissed the action. Coleman-Bey subsequently moved for leave to proceed in forma pauperis on appeal, which the district court granted.
On appeal, a divided panel of the Sixth Circuit affirmed the district court. As Judge Rogers explained for the majority, “A literal reading of § 1915(g) requires district courts to count as strikes cases that are dismissed on the grounds enumerated in the provision even when pending on appeal,” because Section 1915(g) “does not say that the dismissal must be final in all of the courts of the United States.” Moreover, Judge Rogers explained, “Not only does this rule follow the plain meaning of the statute, but it is also consistent with how judgments are treated for purposes of res judicata.” In the process, the Sixth Circuit sided with the Seventh Circuit (and against the Second, Third, Fourth, Fifth, Eighth, Ninth, Tenth, and D.C. Circuits).
Dissenting, Judge Daughtrey objected principally to the majority’s conclusion that the plain text of Section 1915(g) compelled such a result. As she explained, the statute is patently ambiguous as to what constitutes a “prior occasion,” all the more so because it “does not expressly state whether a prior dismissal of ‘an action or appeal’ must be final before it can be considered a ‘strike.’” In light of this ambiguity, she argued, it was appropriate to look to legislative purpose – which makes clear that “Congress could not have intended that dismissals would count as strikes immediately, given Congress’s concern with fostering meritorious prisoner suits and preventing frivolous ones.”
Finally, although the majority had argued that any concerns about freezing out meritorious suits could be overcome by allowing the prisoner to proceed in forma pauperis in the prior suit then on appeal under Federal Rule of Appellate Procedure 24(a)(5), Judge Daughtrey argued that “This alternative is far from satisfying.” In particular, “it threatens to make the resolution of a Rule 24(a)(5) motion more complex and involved than it is at present,” and, more importantly, it “fails to provide any relief for litigants like Coleman who seek pauper status to litigate an unrelated case rather than to appeal a third dismissal decision.” Notwithstanding Judge Daughtrey’s dissent, the Sixth Circuit denied Coleman-Bey’s petition for rehearing and rehearing en banc, after which he successfully sought certiorari from the Supreme Court.
In his briefing on the merits, Coleman-Bey picks up where Judge Daughtrey’s dissent left off—focusing on why the text of Section 1915(g) should properly be understood to be ambiguous as to both what a “prior occasion” is and when it occurs. If Section 1915(g) is ambiguous, Coleman-Bey argues, the far better resolution of that ambiguity is the one adopted by the overwhelming majority of the courts of appeals – that the dismissal of a prisoner’s prior suit only becomes a strike once it has become “final.” Any other rule, Coleman-Bey explained, would raise serious and complex procedural problems for the courts of appeals, which would then be tasked with resolving a wide range of questions about the three-strikes provision through the ungainly vehicle of a motion to proceed in forma pauperis for purposes of appeal.
These themes were picked up – and reinforced – by a trio of amicus briefs in support of Coleman-Bey, including briefs on behalf of the National Association of Criminal Defense Lawyers, the Constitutional Accountability Center, and thirty-three law professors. The NACDL brief, in particular, argues that the majority rule, which has been in place since 1996, has proven easy to administer, while the Sixth Circuit’s approach “permits strikes to arise and vanish intermittently as dismissals are entered and then reversed, potentially barring meritorious claims in the interim.” Ultimately, the brief concludes, “Injecting these complexities into the administration of the PLRA serves no evident useful purpose.”
The state’s arguments
In response, Michigan pivoted to a different textual argument than that on which the Sixth Circuit relied, focusing on Section 1915(g)’s reference to “an action or appeal in a court of the United States that was dismissed.” Moreover, Michigan argues, “Counting a strike when the district court dismisses is consistent with the ordinary rule that such dismissals have legal effect even when pending on appeal—a party wishing to delay that effect must seek a stay pending appeal, and judgments have res judicata effect even when pending on appeal.”
As for Coleman-Bey’s concern that such a rule would wreak havoc in the lower courts, Michigan argued that “ordinary rules of judgments will also be easy to apply. Just as a district-court judgment ceases to have res judicata effect once it is reversed—because a reversal renders the judgment void, as if it had never occurred—so too will a third strike be erased, as if it never occurred.” And as for the concern that such a rule would bar a plaintiff from appealing the district court’s dismissal of the third strike itself, Michigan responded that “[a]ny claim that this is a harsh result is further undermined by the fact that not being able to appeal a third strike is a risk that falls only on prisoners who have already demonstrated on three occasions a propensity to abuse the judicial system.”
In support of Michigan, the United States, as an amicus, argued for a slightly different approach, under which a dismissal would immediately count as a strike for purposes of barring a fourth or successive suit, but not for purposes of barring an appeal of the third strike. As the United States argued, such a dismissal would be a dismissal for purposes of Section 1915(g), but not a “prior occasion” for purposes of counting as a strike against the appeal.
In his reply brief, Coleman-Bey makes quite a lot out of the four different approaches to interpreting a purportedly unambiguous statute taken by the two courts of appeals, Michigan, and the United States. As he explains, “at a minimum, the existence of four different approaches . . . is nigh on conclusive proof that, when it comes to the question of when a dismissal counts as a strike, Section 1915(g) is ambiguous.” And it stands to reason that, insofar as Monday’s argument further exposes these ambiguities, that will only serve to reinforce that conclusion.
The harder question is whether the concerns Coleman-Bey and his amici have raised about the administrability and fairness of any of those four approaches will suffice to tip the scales – and the Justices’ votes – in his favor.