Under PLRA, three-strikes applies even if third case is on appeal

In an effort to curtail inmate litigation, Congress two decades ago passed the Prison Litigation Reform Act, which among other things limits when destitute inmates can seek "poor persons' status" in order to waive their filing fees. Three frivolous lawsuits and say goodbye to that entitlement. This Supreme Court asks What is a strike?

The case is Coleman v. Tollefson, decided on May 18. In Forma Pauperis is the official designation for poor persons' status. Inmates can file lawsuits over their prison conditions, but three frivolous cases is the limit if want to waive the filing fee. In this case, the inmates brought three such lawsuits. Strike three was on appeal when he tried to file another case without paying the filing fee. He argued that since strike three was on appeal, it did not yet count as a strike. After all, the case is on appeal and hope springs eternal, right?

Wrong, a unanimous Court says. A dismissal does not mean an affirmed dismissal. "The linguistic term 'dismiss,' taken alone, does not normally include subsequent appellate activity." And the PLRA "describes dismissal as an action taken by a single court, not as a sequence of events involving multiple courts." And, Justice Breyer says, "Our literal reading of the 'three strikes' provision also is supported by the way in which the law ordinarily treats trial court judgments. Unless a court issues a stay, a trial court's judgment (say, dismissing a case), normally takes effect despite a pending appeal. And a judgment's preclusive effect is generally immediate, notwithstanding any appeal."

But what if the strike three appeal is actually successful? The Court addresses that possibility, noting it is a remote possibility:

We recognize that our interpretation of the statute may create a different risk: An erroneous trial court dismissal might wrongly deprive a prisoner of in forma pauperis status with respect to lawsuits filed after a dismissal but before its reversal on appeal. But that risk does not seem great. For one thing, the Solicitor General informs us that he has been able to identify only two instances in which a Court of Appeals has reversed a District Court’s issuance of a third strike. For another, where a court of appeals reverses a third strike, in some instances the prisoner will be able to refile his or her lawsuit after the reversal, seeking in forma pauperis status at that time. Further, if the statute of limitations governing that lawsuit has run out before the court of appeals reverses the third strike, the Solicitor General assures us that prisoners will find relief in Federal Rule of Civil Procedure 60(b). According to the Solicitor General, a prisoner may move to reopen his or her interim lawsuits (reinstating the cases as of the dates originally filed) and may then seek in forma pauperis status anew. In any event, we believe our interpretation of the statute hews more closely to its meaning and objective than does Coleman’s alternative.