In June 2020, Jeremy Wells warned prison staff about violent activity by other incarcerated individuals at the Augusta State Medical Prison in Georgia. After correctional officers took no action, Wells was brutally attacked and suffered serious injuries. Wells brought suit in federal court and sought permission to proceed in forma pauperis (IFP), a designation that permits prisoners to proceed in court without pre-paying legal fees. The district court denied Wells IFP status, determining that he was ineligible because he had three prior “strikes” under the Prison Litigation Reform Act (PLRA).

The PLRA prohibits prisoners from proceeding IFP when they have three “strikes,” i.e., they have had three prior suits dismissed because they were frivolous, malicious, or failed to state a claim upon which relief may be granted. The district court concluded that Wells had three “strikes” because it counted as “strikes” two suits that were previously dismissed on the ground that he failed to exhaust his administrative remedies. Wells appealed this ruling, arguing that dismissal for failure to exhaust administrative remedies does not constitute a “strike” under the plain language of the statute. Furthermore, Wells argued that the Eleventh Circuit’s interpretation of the PLRA is at odds with Supreme Court precedent and the holdings of every other circuit to have considered this issue. After a panel of the Eleventh Circuit affirmed the district court’s decision, the whole court agreed to rehear the case en banc. On June 14, 2022, CAC filed an amicus brief in support of Wells.                                                                                                   

Our brief argued that the Eleventh Circuit’s precedent holding that dismissals for failure to exhaust administrative remedies count as PLRA “strikes” raises serious constitutional questions. Our brief made two main points in support of that argument.

First, our brief explained that Article III of the Constitution gives federal courts broad authority to ensure that individuals will have recourse to vindicate their rights. At the Founding, the Framers recognized that constitutional limitations on government would be meaningless if the American people did not have the ability to vindicate their rights in the federal courts. Reflecting the Framers’ belief that a strong judiciary is essential to the protection of individual liberties, the Supreme Court has repeatedly recognized that all people, including prisoners and the indigent, must have meaningful access to the courts to raise fundamental constitutional claims.

Second, our brief explained that interpreting the three strikes provision to include dismissals for failure to exhaust administrative remedies threatens the constitutional right of access to the courts that the Framers viewed as essential to protecting individual liberty. Because most prisoners do not have the means to pay court fees, denial of IFP status effectively erects a total barrier to legal review for indigent prisoners seeking to vindicate fundamental constitutional rights. And this is particularly disturbing in light of the fact that exhaustion has nothing to do with the merits of the underlying claim: all it means is that a prisoner has not successfully navigated the often-labyrinthine prison grievance procedures. And even then, failure to exhaust is often a temporary, curable procedural flaw. After exhausting their claims, prisoners can reinstitute their suits. The PLRA was designed to address the perceived need to reduce the number of meritless prisoner lawsuits, but by counting cases dismissed on the basis of failure to exhaust, the Eleventh Circuit’s precedent threatens the constitutional right of access to the courts without serving that goal. Because courts are supposed to avoid interpreting statutes in a way that raises constitutional concerns when the statute can easily be read in a way that does not raise those concerns, the Eleventh Circuit should overrule its precedent counting dismissals for failure to exhaust administrative remedies as “strikes” under the PLRA.

On February 1, 2023, the Eleventh Circuit issued its decision, reversing the lower court’s dismissal and allowing Wells to proceed IFP. Although the court concluded that dismissal for failure to exhaust can count as a strike when it’s apparent on the face of the prisoner’s complaint, the court held that one of  Wells’s purported “strikes” for failing to exhaust should not count as a “strike” because the failure to exhaust was not apparent on the face of the complaint.