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Opinion analysis: Dismissed prisoner suits count as “strikes” even while being appealed

In an opinion that is surprising in both its brevity and unanimity, the Supreme Court on Monday sided with the Sixth and Seventh Circuits (and against the Second, Third, Fourth, Fifth, Eighth, Ninth, Tenth, and D.C. Circuits) in holding that the dismissal of an in forma pauperis (“IFP”) prisoner’s prior suit counts as a “strike” for purposes of the Prison Litigation Reform Act’s “three strikes” provision even while an appeal of that dismissal remains pending. As a result, petitioner André Lee Coleman was not entitled to IFP status for lawsuits he filed while he appealed his “third” strike. But whereas Justice Stephen Breyer’s opinion for the Court in Coleman v. Tollefson purported to duck the harder question of whether Coleman would also have been barred from obtaining IFP status to appeal the third strike itself, it is difficult to see how the Court’s statutory analysis in Coleman’s case wouldn’t apply to those facts, as well.

As we summarized in our argument preview, the issue before the Court arises from the language of the so-called “three strikes” provision of the Prison Litigation Reform Act of 1996, 28 U.S.C. § 1915(g). That provision precludes IFP status for prisoners who have “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 question that divided the circuits is how the statute’s reference to “prior occasions” should be understood given its focus on “dismissals.” That is to say, does a district court’s dismissal count as a “prior occasion” even while it is being appealed? Or is a “prior occasion” measured by reference to the finality of the earlier proceeding – and, thus, the completion of any appellate review? In Coleman’s case, the Sixth Circuit ruled that a dismissal is a “prior occasion” even while it is being appealed – and until and unless the dismissal is reversed.

The Court made quick work of this question. As Justice Breyer wrote in his opinion for the Court, “the statute refers to whether an action or appeal ‘was dismissed.’ The linguistic term ‘dismiss,’ taken alone, does not normally include subsequent appellate activity. Indeed, § 1915 itself describes dismissal as an action taken by a single court, not as a sequence of events involving multiple courts.” Moreover, “we see nothing about the phrase ‘prior occasions’ that would transform a dismissal into a dismissal-plus-appellate-review.” As the Court continued, such a “literal reading” of the three-strikes provision is supported by both “the way in which the law ordinarily treats trial court judgments,” and Congress’s underlying purpose in enacting the provision. Although the Court conceded that such a reading of the statute creates a risk that “[a]n erroneous trial court dismissal might wrongly deprive a prisoner of in forma pauperis status with respect to lawsuits filed after a dismissal but before its reversal on appeal,” it dismissed that risk as marginal, invoking the federal government’s submission in its amicus brief that it could find only two instances in which third strikes had been reversed on appeal.

The harder question raised in Coleman’s case is whether, under the Sixth Circuit’s approach, a prisoner would therefore also be barred from obtaining IFP status to appeal a third-strike dismissal (as opposed to filing a fourth-or-successive original suit). Although the federal government appeared as an amicus in support of the result of the decision below, it urged the Justices to split the difference – and to not count a dismissal as a “third strike” for purposes of appealing that dismissal, lest prisoners be left with no means of appealing erroneous third-strike dismissals.

Presumably, the brevity and unanimity of the opinion can be traced to its final section of analysis, in which the Court declined to resolve that question. As it explained, Coleman was appealing the dismissal of separate suits filed after the trial court dismissed his earlier third-strike suit. “With respect to those suits,” the Court concluded, “the earlier dismissals certainly took place on ‘prior occasions.’ If and when the situation that Coleman hypothesizes does arise, the courts can consider the problem in context.”

And yet, it is difficult to reconcile the Court’s purported abstention from reaching this larger issue with its analysis of Coleman’s case specifically. After all, if the Court is correct that the plain language of Section 1915(g) requires dismissals to be treated as strikes for purposes of subsequently filed suits even while they are being appealed, it is hard to see how the same plain language wouldn’t treat the dismissal as a strike for purposes of appealing the dismissal itself. If the language of the statute really is “plain,” contrary to the eight circuits to conclude otherwise, then the Court’s decision seems to have answered the very question it claimed to be avoiding – and to bar prisoners from pursuing IFP appeals of third-strike dismissals, as well. And if the statute could reasonably admit of different answers depending upon whether the strike is barring IFP status for an appeal as opposed to IFP status for a fourth-or-successive prisoner suit, then perhaps its language is not so “plain,” after all.

Plain English: A federal statute requires indigent prisoners to pay filing fees for new lawsuits or appeals if, on three or more “prior occasions,” suits they have filed have been dismissed because they were clearly without any merit. The Supreme Court ruled unanimously that this statute applies even if one of the earlier dismissals is still under appeal when the prisoner files his new suit.

Recommended Citation: Steve Vladeck, Opinion analysis: Dismissed prisoner suits count as “strikes” even while being appealed, SCOTUSblog (May. 18, 2015, 4:45 PM),