Three strikes, you're not out

In the mid-1990s, Congress decided it was open season on inmate litigation. It was not banned outright, but Congress reined in these cases. One way to do that was to deny inmate in forma pauperis status if they had previously filed three frivolous actions in the past. (In forma pauperis means you don't have to pay the filing fee). It all seemed so simple back then. It was not. The courts are still untangling the Prison Litigation Reform Act.

The case is Jones v. Smith, decided on June 19. Is there a more generic caption for a lawsuit than Jones v. Smith? Probably not. This dispute started after Jones filed and lost two separate cases: one alleging that prison officials deprived him of reasonable access to the courts. Jones then appealed that dismissal and lost. We will call this Case A. In Case B, Jones filed a habeas corpus petition challenging his state court conviction. He lost that case and also lost the appeal. Then he filed a motion in the district court to vacate the dismissal of Case B under Rule 60, and after losing that battle, he took up an appeal and lost that one also. So that's five losses in two cases. Under the three-strikes-yer-out rule under the PLRA, the district court in this case says he is ineligible for in formal pauperis status.

The Court of Appeals (Leval, Katzmann and Hall) disagrees in this case of first impression. Under the PLRA, a habeas petition is not a "civil action" for purposes of counting up the inmate's frivolous cases. But the district court said that appeals from weak habeas cases count as a strike. The Court of Appeals does not see it this way. When Congress enacted the PLRA, it was trying to reduce bogus civil actions over prison conditions, like when inmates sue under the Equal Protection Clause because they did not get enough meatballs. Habeas actions do not challenge prison conditions but, instead, the constitutionality of the conviction itself. Appeals can count as strikes, but only in civil actions that may count as strikes. Appeals from frivolous habeas actions don't count. And, right before Congress passed the PLRA, it enacted a law governing frivolous habeas petitions. So Congress most likely intended to cover habeas actions in the first piece of legislation, not the PLRA.

In sum, here is the rule of law in this area: "dismissals of habeas petitions challenging the prisoner's conviction or the duration of his confinement should not be considered strikes for purposes of the PLRA."