Koufax curveball doesn't quite strike out litigious inmate

If you want a glimpse of what might happen if the Republicans gain control of Congress this November, take a look at the Prison Litigation Reform Act, a law passed in 1995, the last time the Republican Party swept into Washington. There is a lot of work to do when the government turns over, but there is always time to push around inmates, especially litigious ones.

The case is Chavis v. Chappius, decided on August 17. The PLRA limited how and when inmates could sue their jailers. Among other things, it contains a three-strikes-you're-out provision that says that if inmates file three frivolous lawsuits (or even cases that technically fail to state a claim), they can no longer file any cases in forma pauperis, which allows indigent inmates to avoid paying the filing fee.

Chavis filed his share of frivolous lawsuits. He again brought suit in 2006 alleging that prison guards physically injured him and denied him medical treatment for hepatitis B. The question is how to count prior failed lawsuits as strikes. If Chavis filed three frivolous actions, then he has to pay the filing fee for this case. If he's too poor to pay the fee, then it's tough luck.

In this case, the question is whether a frivolous appeal from the dismissal of a frivolous case counts as one strike or two. The PLRA says, in part: "In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions ... brought an action or appeal in a court ... that was dismissed on the grounds that it was frivolous, malicious or fails to state a claim upon which relief may be granted." The Second Circuit summarizes plaintiff's position: "as Chavis argues, does 'action mean the entire course of a lawsuit, leaving 'appeal' to refer solely to cases in which a plaintiff appeals a non-strike district court disposition?"

That one case gives Chavis two strikes. The initial lawsuit and the appeal count as two strikes since both were deemed meritless. The Court of Appeals notes that "every circuit court to address the matter has held the sequential dismissals count as two strikes." The Second Circuit will not buck that trend. As he had prior meritless lawsuits, Chavis strikes out on a Sandy Koufax curveball.

But ... the PLRA has a safety valve if the litigious inmate files a lawsuit alleging the imminent danger of physical injury. Who says Republicans aren't compassionate? Even a three-striker can bring a case under these circumstances. Chavis can. He alleges that prison guards threatened to assault him and one of them visited his cell for "intimidation" reasons. Some 16 officers had threatened Chavis with death on multiple occasions. The Second Circuit tells us, "An allegation of a recent beating, combined with three separate threatening incidents, some of which involved officers who purportedly participated in that beating, is clearly the sort of ongoing pattern of acts that satisfies the imminent danger exception."