Inmate servives PLRA three-strikes-you're-out rule

In the mid-1990's, Congress decided to strike back against what it deemed frivolous prisoner lawsuits. It enacted the Prison Litigation Reform Act, which says among other things that three frivolous lawsuits will bar the inmate from seeking in forma pauperis status in future lawsuits. In plain English, the "three strikes-you're-out rule" means that indigent inmates have to pay the filing fees for any future cases. The PLRA is almost 25 years old and the courts are still figuring out how to apply it.

The case is Cotton v. Noeth, issued on March 14. In this case, the issue is what is a PLRA strike? The issue is not always easy to answer. Plaintiff brought three prior lawsuits. The Court of Appeals finds that none of them are strikes even though he lost each of them. Cotton wins this appeal and can proceed with his case, which alleges he was wrongfully denied a transfer to Sing Sing Correctional Facility, which offered a master's degree program. 

The first lawsuit, referred to as the McCarthy litigation, asserted Section 1983 and state law claims against the City of Buffalo but was dismissed for failure to state a claim under Rule 12(b)(6). That could be a strike, but it is not because it was a "mixed dismissal": the federal claim was dismissed but the district court declined to exercise jurisdiction over the state law claims. Without the entire case being dismissed on the merits, the dismissal is not a real strike. I wonder if Congress even thought about this when it enacted the three-strikes rule.

The second lawsuit, referred to as the Titone litigation, was dismissed because plaintiff did not comply with Rule 8's pleading requirements, and plaintiff was given the opportunity to re-plead the case. Such a dismissal is not a real strike. The kicker here is that plaintiff did not try to re-plead the case and walked away from the case. In that circumstance, there was not "dismissal" under the PLRA. 

The third lawsuit, known as the Lema case, sued the City of New York under Section 1983, was dismissed without prejudice as premature. He was unable to really bring the case until any challenges to his conviction were resolved. We call that a Heck dismissal, based on Heck v. Humphrey, a complex Supreme Court ruling that says you cannot bring a civil lawsuit that would have the effect of challenging your criminal conviction outside the normal process of appealing from a criminal conviction. Some Circuits hold that Heck dismissals are strikes. Other Circuits see this issue differently.

 

The Second Circuit holds that Heck dismissals are not strikes unless the dismissal turns on the merits and not timing. The Lema dismissal is not a strike, says the Second Circuit majority (Chin and Nathan), because that case was dismissed as premature. Judge Walker dissents from that reasoning and writes that a Heck dismissal like this counts as a strike.