“Yer Out!” United States Supreme Court Tosses 4th Pro Se in Forma Pauperis Request Holding that “Three Strikes” Provision Includes Cases Dismissed by a District Court and Pending on Appeal


By: Andy Treese and Charles Reed, Jr.

When Congress codified citizens’ access to courts regardless of their ability to pay costs, federal courts quickly became inundated with prisoner lawsuits.  Congress, in turn, enacted the “three strikes” provision in 28 U. S. C. §1915(g) which provides that “in no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while  incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” The United States Supreme Court held in Coleman v. Tollefson, 575 U.S. ___ (2015) that the “three strikes” includes cases dismissed by a district court and pending on appeal.

In Coleman, the plaintiff brought three federal lawsuits during his incarceration that had been dismissed on grounds enumerated in §1915(g). Following the appeal of his third dismissal, but before the appellate court’s ruling on that appeal, Coleman filed four new federal lawsuits between April 2010 and January 2011, and moved to proceed in forma pauperis in each one. The district court denied each of Coleman’s four in forma pauperis requests holding that “a dismissal counts as a strike even if it is pending on appeal at the time that the plaintiff files his new action.” The Sixth Circuit agreed with the district court and denied Coleman’s requests, albeit on different grounds.  The United States Supreme Court granted certiorari to resolve whether a dismissal of an in forma pauperis request on a statutorily enumerated ground counts as a strike while an appeal of that dismissal remains pending.  The Supreme Court held that it does.

The Court summarily rejected Coleman’s argument for an expansion of the word “dismissed” in the statute to include appellate activity by citing to the plain language of the statute, treatment of the word “dismissed” in case law and an analysis of congressional intent within the statute from a linguistic and practical matter.  The Court acknowledged that while there was a risk that a litigant that might find themselves wrongfully deprived of in forma pauperis status, that risk was “not great” since there were various remedies to ameliorate any adverse effects of the deprivation within the existing Federal Rules of Civil Procedure.

Serial litigants who file numerous frivolous in forma pauperis lawsuits waste defendants’ resources, the court’s time and impede the prompt resolution of cases.  As those litigants begin to feel the impact of this decision, the benefit to the judicial system will be felt through the weeding out of meritless claims.