Three strikes and yer outta there!

Because inmate litigation is bringing down western civilization as we know it, Congress in the mid-1990s enacted the Prison Litigation Reform Act, which says among other things that inmates must pay their filing fees if they have already filed three frivolous lawsuits. This is the "three-strikes-you're-out" rule. It only affects inmates who want to proceed in forma pauperis, which lets the court waive the filing fees if the inmate has no money.

The case is Mills v. Fischer, decided on July 14. Congress may have the answer to some of our problems, but it doesn't have all the answers. In passing the PLRA, Congress tried to define what it means to file a frivolous lawsuit. But it did not say that a lawsuit against defendants with judicial immunity is a "strike" under the statute. This is where Mills comes in.

Mills has filed and lost a bunch of lawsuits and appeals against immune defendants. Some of those defendants enjoyed judicial immunity. Now, any lawyer who represents an inmate will refrain from suing judges or anyone else with judicial immunity. But Mills either did not know this or he did know this and filed his lawsuits anyway. In this case, he wants the Court of Appeals to grant his in forma pauperis motion. No dice. As Chief Judge Jacobs sums up the case:

In some instances, Mills’s litigation initiations were dismissed on the ground of judicial immunity. The IFP statute does not explicitly categorize as frivolous a claim dismissed by reason of judicial immunity, but we will: Any claim dismissed on the ground of absolute judicial immunity is “frivolous” for purposes of 28 U.S.C. § 1915(g). Mills’s (more than) three strikes therefore disqualify him from IFP status.

The Second Circuit thus fills in the blanks left open by the PLRA. If Mills does not find the money to pay for this litigation within 30 days, it will be dismissed.