Inmate loses under PLRA's "three strikes" rule

The Prison Litigation Reform Act of 1996 made it more difficult for inmates to bring federal lawsuits if their prior actions were deemed meritless. They can proceed in forma pauperis, i.e., without paying the filing fee if they cannot afford it, but under the "three strikes" provision, three bogus lawsuits means you're paying your way to litigate any future cases. Twelve years after Congress enacted PLRA, the courts are still untangling its meaning.

The case is Harris v. City of New York, decided on June 2. Harris claimed in this case that Rikers prison guards assaulted him and ruptured his eardrum. He was denied in forma pauperis status and therefore had to pay filing fees because the district court found that Harris had four strikes on his record. By this time, however, Harris had been released from prison. So, does the three-strikes rule apply to prisoners who are back on the streets?

Let's look at this from Harris's point of view. If PLRA was intended to discourage frivolous lawsuits by inmates, why should its restrictions apply when the inmate is no longer in jail? PLRA reigns in the litigation tactics of inmates, not the rest of us.

This argument will not fly. PLRA says that "in no event shall a prisoner bring a civil action ... under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal ... that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted." The law says that the inmate may not bring an action if on three prior occasions he brought a meritless suit. "Bring" is written in the present tense. Doesn't matter if the inmate got out of jail after he brought the lawsuit. What matters is what he did while in jail. The Second Circuit (Katzmann, Leval and Parker) concludes, "Because Harris was a prisoner at the time he 'brought' the present action, the text of the statute mandates that the three strikes rule apply."

The only silver lining for Harris is that if he chooses to re-file his case, he can still avoid paying the filing fee if he can prove his entitlement to in forma pauperis status. This is because now that Harris is no longer in jail, the PLRA does not apply to him anymore, and the three-strikes rule does not apply to him anymore.