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An Opportunity for Agreement at the Supreme Court

June 6, 2014

Many issues in the courts these days break down on partisan lines.  But one that doesn’t relates to the proper interpretation of the so-called “three strikes” provision of the Prison Litigation Reform Act, a provision that implicates the Constitution’s guarantee of meaningful access to the courts.

First, a bit of background: people often say that everyone’s entitled to his day in court.  But that day in court generally requires paying a filing fee, sometimes hundreds of dollars.  Pursuant to a federal statute, indigent litigants (including prisoners) are allowed to file claims without paying these fees if they submit an affidavit stating that they are unable to pay.  This is known as proceeding in forma pauperis (IFP), and it’s the only way to ensure that no one is denied his day in court simply because he is too poor to pay the filing fee.  For prisoners, it is often the only way of ensuring that they can challenge the conditions of their confinement.  But the Prison Litigation Reform Act contains a “three strikes” provision that denies IFP status to any indigent prisoner who, on three or more prior occasions while incarcerated, has brought an action or appeal that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which a court could have granted relief.  Put simply, three strikes, and as a practical matter, you’re out of the court system.  (The sole exception is if the prisoner alleges that he is in “imminent danger of serious physical injury.”) 

One question about the “three strikes” provision is whether a dismissal counts as a “strike” if the dismissal has been appealed (and not yet decided) or the time to appeal has not yet run out.  Here is where the cross-ideological agreement comes into play: the vast majority of judges—both Republican and Democratic-appointees—who have considered this question have agreed that a dismissal that can still be reversed on appeal should not count as a “strike.” But two lower courts (the Sixth and Seventh Circuits) have adopted a different view.  The Supreme Court has now been asked to review one of those cases, Coleman-Bey v. Tollefson, and to address the proper interpretation of this provision.  Given the important implications of that interpretation for fundamental constitutional principles, the Court ought to review this case.     

And if the Court agrees to hear Coleman-Bey, it should have little difficulty agreeing with the majority of lower court judges who have held that a non-final dismissal isn’t a “strike” for purposes of the PLRA’s “three strikes” provision.  Such a ruling would be consistent not only with the statute’s text, but also with common sense.  A dismissal surely can’t count as a “strike” if it’s later reversed on appeal.  It therefore makes no sense to count a dismissal as a “strike” when an appeal is still pending.  Nor does this interpretation undermine the statute’s goal of limiting frivolous prisoner litigation because it still denies IFP status to a prisoner who repeatedly files frivolous claims.  All it means is that IFP status should not be denied until the last of the prisoner’s three allotted dismissals is final.  Three final dismissals, and the prisoner is out.

There is an additional reason beyond the statute’s text and purpose that the majority view is the right one: the Constitution’s guarantee of access to the courts.  As CAC has explained in an amicus brief urging the Supreme Court to hear Coleman-Bey and address this issue, the Framers conferred broad power on the federal courts to ensure that they would be able to protect individual liberty and ensure compliance with the Constitution and the nation’s laws.  Reflecting the Framers’ vision, the Supreme Court has repeatedly recognized that all people, including prisoners and the indigent, must have meaningful access to the courts to present fundamental constitutional claims.  As the Court explained in Smith v. Bennett (1961), “to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws.”  

Given the Constitution’s fundamental guarantee of access to the courts, the “three strikes” provision of the PLRA could raise serious constitutional concerns even when all three “strikes” are final.  As Judge David Tatel of the D.C. Circuit recently wrote in an opinion (interestingly, a concurrence to his own majority opinion), the “three strikes” provision of the PLRA threatens to impose a “‘total barrier’ to [prisoners] bringing their claims” by requiring even those prisoners who are bringing claims involving fundamental constitutional rights “to pay all filing fees upfront.”  At the very least, the provision certainly raises serious constitutional concerns if a dismissal constitutes a “strike” while it remains subject to reversal on appeal.  These serious constitutional concerns present an additional reason why a dismissal should not count as a “strike” until it has been affirmed on appeal or the time for appellate review has lapsed.  But unless the Supreme Court grants review, a non-final dismissal will continue to count as a “strike” in states in the Sixth and Seventh Circuits (that is, in roughly half a dozen states, including Michigan, Illinois, and Ohio).  Whether an indigent prisoner can access the courts shouldn’t turn on where he lives.  The Supreme Court should hear Coleman-Bey v. Tollefson and hold that a non-final dismissal doesn’t count as a “strike” for purposes of the PLRA’s “three strikes” provision. 

As we head into June, we’re likely to see a number of decisions producing disagreement among the Justices, much of it breaking down along partisan lines.  As the results in the lower courts demonstrate, however, if the Justices agree to hear Coleman-Bey, they’ll have at least one case on their docket for next Term that shouldn’t.