The Prison Litigation Reform Act (PLRA), enacted by an overwhelmingly bipartisan vote to respond to the prisoner “litigation explosion,” has reduced the number of prisoner suits. But more than twenty years later, federal dockets remain loaded with inmate litigation. Forty percent of the Fifth Circuit’s docket is occupied by prisoner suits – about ninety percent of which are unsuccessful. My last article explored an under-utilized tool to deter frivolous prisoner claims: the Spears hearing; another such tool is the “Three Strikes Rule,” codified at 28 U.S.C. § 1915.
The Three Strikes Rule prohibits an inmate from filing suit in forma pauperis after that inmate has three claims dismissed as “frivolous, malicious, or [failing] to state a claim upon which relief may be granted,” with an exception if the inmate is “under imminent danger of serious physical injury.” So a prisoner may still file suit after having three dismissed as frivolous, malicious, or failing to state a claim – that is, three “strikes” – but to do so, the prisoner must pay the full filing fee. In the U.S. District Courts for the Northern and Southern Districts of Mississippi, that fee is about $400.
Still, many prisoners who have had at least three suits dismissed for the reasons enumerated in the Three Strikes Rule – are still filing, and filing a lot, in forma pauperis. Here are three such prisoners:
- Gregory Konrath (as of January 18, 2017)
- 60 cases filed in 2016 alone in the Northern District of Indiana
- 35 additional cases filed in 9 other federal district courts
- 12 suits dismissed as frivolous, malicious, or for failure to state a claim
- Deric Lavelle May (as of July 15, 2015)
- 7 actions dismissed as frivolous, malicious, or for failure to state a claim in the Southern District of Alabama (all dismissals affirmed by the11th Circuit Court of Appeals)
- 10 additional actions filed in the Northern District of Alabama, 5 of which were dismissed as frivolous, malicious, or for failure to state a claim
- Allen Kelly (as of February 3, 2015)
- 6 lawsuits dismissed as “frivolous” and 2 additional lawsuits “dismissed pursuant to the Three Strikes Rule” in the Middle District of Pennsylvania
Clearly, there must be unintentional loopholes (or maybe intentional carve-outs?) in the Three Strikes Rule that prevent the Rule from maximizing its effectiveness to prohibit multiple, frivolous filings from recreational inmate litigators. Holdings from various federal courts demonstrate these loopholes:
- A prisoner’s failure to exhaust administrative remedies – a requirement before filing suit under the PLRA – does not constitute a “strike,” even though such failure is grounds for dismissal under FRCP 12(b)(6) for failure to state a claim upon which relief may be granted.
- Dismissals of habeas corpus petitions do not count as “strikes” because such proceedings are not “civil actions” as envisioned by the Three Strikes Rule.
- Where a prisoner’s lawsuit includes multiple claims, and one or more of those claims is dismissed for a reason enumerated in the Three Strikes Rule, the partial dismissal of a prisoner’s complaint does not constitute a “strike.”
- Dismissal of a lawsuit on the basis of the prisoner plaintiff’s failure to prosecute is not a “strike.”
Congress may have intended some or all of these results, or Congress may not have considered them at all. Regardless, such exceptions hinder the Three Strikes Rule from being fully utilized to deter frivolous prisoner lawsuits. Thus, amendments may be in order to clarify the Act and settle judicial debate.
Another impediment to the effectiveness of the Three Strikes Rule is the language of judicial opinions dismissing prisoner suits. That is, a prisoner may have a claim dismissed for one of the reasons enumerated in the Three Strikes Rule, but the opinion may not state that the dismissal is a “strike” – and thus, no “strike” is incurred. This issue is illustrated in the Allen Kelly case, listed above, delineating between cases “dismissed as frivolous” versus cases “dismissed pursuant to the three strikes rule.” To prevent this issue, counsel defending against such claims may move the court to expressly impose a “strike” pursuant to the Three Strikes Rule.
The Three Strikes Rule was intended to deter prolific-litigator prisoners from filing frivolous actions by taking away the privilege to file in forma pauperis if those prisoners abused that privilege. However, if the Three Strikes Rule is to be truly effective to reduce repetitive, unwarranted inmate suits, the issues highlighted here should be addressed – either by Congress, by the courts, or by counsel defending against prisoner suits.