Access to Justice

Striking Out: Wrongly Keeping Indigent Prisoners Out of Court

The Supreme Court will decide whether to hear a case about the “three strikes” provision of the Prisoner Litigation Reform Act that has enormous implications for prisoners’ right of access to the courts.

Though legal headlines tend to focus only on a few blockbuster cases each Term at the Supreme Court, the Court also hears many cases that don’t make the news but raise novel and important issues. The Supreme Court will soon decide whether to hear one such case that likely won’t gain much attention, but raises a critically important question about prisoners’ ability to access the court system.

First a little background: under federal law, courts allow indigent litigants to file suit in forma pauperis—that is, without paying certain litigation fees. This benefit is critical for people unable to pay the $400 fee for filing suit in federal district court despite having a legitimate legal claim. However, the Prisoner Litigation Reform Act (PLRA) prohibits one specific type of litigant—current prisoners—from obtaining in forma pauperis status if on three “prior occasions” they have had “an action or appeal” dismissed. In other words, for prisoners alone, once they’ve filed three suits that have been dismissed (e.g., for failure to state a claim), the prisoner is forever precluded (except in certain narrow circumstances) from obtaining in forma pauperis status in the future, even in completely unrelated actions. As critics have long noted, this so-called “three strikes” provision places a severe burden on prisoners’ ability to redress legal wrongs because prisoners often do not have the resources to pay court fees.

Three years ago, in Coleman v. Tollefson, the Supreme Court considered whether the “three strikes” provision prevented a prisoner who received a “third strike” dismissal in a district court from proceeding in forma pauperis in other subsequently filed actions while the prisoner was appealing that “third strike.” The Court said yes, holding that a district court dismissal counted as a strike under the PLRA during the pendency of any appeal. The Court, however, explicitly left open the question whether a “third strike” dismissal would prevent a prisoner from filing an appeal of that dismissal in forma pauperis, saying that “[i]f and when [that] situation . . . does arise, the court can consider the problem in context.”

The case the Supreme Court will decide whether to hear next Term—Parker v. Montgomery County Correctional Facility—squarely raises that question. In the challenged decision, the Third Circuit held that the PLRA prevents a prisoner from appealing in forma pauperis a district court dismissal that constitutes his “third strike.” The Supreme Court should take this case because the Third Circuit’s interpretation is wrong, and raises serious statutory and constitutional questions.

First, the Third Circuit’s interpretation is at odds with the text of the statute. The PLRA says that dismissals only count as strikes under the PLRA if they are dismissals on “prior occasions.” “Prior” most sensibly refers to strikes from prior-filed suits, not strikes imposed at an earlier phase of the same suit. Indeed, though the Solicitor General filed a brief opposing the prisoner in Coleman, in that case he also explicitly supported the interpretation Parker now offers. The Solicitor General reasoned that “it is hard to see what other function the word ‘prior’ might serve” other than to refer to prior suits altogether.

Second, the Third Circuit’s decision does not accord with the Supreme Court’s reasoning in Coleman. The Court in Coleman noted that its interpretation was “supported by the way in which the law ordinarily treats trial court judgments”—namely, that “a trial court’s judgment (say, dismissing a case)” is normally given “preclusive effect . . . notwithstanding any appeal.” In other words, a trial court judgment on a question prevents litigation of that same issue in a different court even during that judgment’s appeal. That is not true here because a trial court’s judgment is not preclusive to the panel on appeal—the very point of an appeal is to take a second look at a trial court’s judgment. 

Third, the Third Circuit’s decision is both absurd and unfair. It would be strange for Congress to have intended to allow a plaintiff to appeal a first or second strike in forma pauperis, but not to appeal a third strike in forma pauperis. The Third Circuit’s interpretation is also unfair to indigent prisoners, who under its reading would have no avenue to correct a wrongly dismissed “third strike.” Indeed, the consequences are even more striking here: forever prohibiting an indigent prisoner from filing even unrelated actions in forma pauperis. If Congress intends such a simultaneously odd and punitive outcome, it should be required to say so unambiguously.

Finally, as the Constitutional Accountability Center explained in an amicus brief urging the Court to hear the case, the Third Circuit’s interpretation raises serious constitutional concerns. The Supreme Court recognized over forty years ago that “it is now established beyond doubt that prisoners have a constitutional right of access to the courts.” For that reason, many lower court judges have observed that the “three strikes” provision raises constitutional concerns because it effectively erects a total barrier after three dismissals to legal review for indigent prisoners seeking to vindicate fundamental constitutional rights. Our brief argues that the decision of the Third Circuit only exacerbates these concerns. Interpreting the “three strikes” provision to prevent an indigent prisoner from obtaining in forma pauperis status in an appeal of a third strike prevents the prisoner from obtaining any appellate review at all of a decision that will forever prevent him from filing future constitutional claims in forma pauperis. This raises serious questions about whether the Third Circuit’s construction comports with the Due Process and Equal Protection Clauses’ guarantee of equal access to the courts. 

What the Supreme Court does with this case may not make huge headlines. But the outcome is critical to prisoners around the country, and it should be important to anyone who cares about prisoners’ ability to access the court system.

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