Circuit upholds "three-strikes-you're-out" filing rule

If you're an indigent inmate who wants to bring a lawsuit against the jailers, the court may allow you to proceed in forma pauperis, or as a poor person. This means that you don't have to pay filing fees. That entitlement can be taken away, however, if the court determines that you filed three frivolous lawsuits. Is the three-strikes-and-you're-out rule constitutional? The Court of Appeals says "yes."

The case is Polanco v. Hopkins, decided on December 6. Polanco brought a lawsuit alleging that he had been exposed to mold in a gym shower at Elmira Correctional Facility and was unjustly disciplined on two occasions at Auburn Correctional Facility. He also wanted the court to grant his "poor person's" petition. The Western District of New York denied that petition because Polanco had brought frivolous lawsuits in the past. Handling the case pro se on appeal, he argued that the Equal Protection Clause and the right of access to the courts makes the "three-strikes-and-you're-out" rule unconstitutional.

Joining the other circuits which have upheld the constitutionality of this limitation on "poor person's" petitions, the Second Circuit reasoned that in forma pauperis status is not a constitutional right, but a “congressionally created benefit” which can be “extended or limited by Congress.” In addition, this rule makes an exception for inmates who are in imminent danger
of serious physical safety. Under that exception, the court can still grant in forma pauperis status for a frequent frivolous filer. In sum, the law "presents no unconstitutional burden to a prisoner’s access to the courts: the provision does not prevent prisoner[s] . . . from filing civil actions, it merely prohibits [them] from enjoying [in forma pauperis] status.” The “imminent danger exception, which permits, in certain instances, successive filings that would otherwise be barred, extends access to the courts rather than restricts it. Accordingly, the imminent danger exception does not violate the rights of access to the courts granted by the equal protection guarantee of the Fifth Amendment."