Labor and Employment Law
| Publication year | 2017 |
Labor and Employment Law
W. Jonathan Martin II
F. Damon Kitchen
Gary R. Wheeler
Patricia-Anne Upson
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The three-strike provision of the Prison Litigation Reform Act (PLRA)1 was implemented to curb the filing of frivolous and meritless claims by prisoner litigants in federal courts. Although the PLRA is over two decades old, the United States Court of Appeals for the Eleventh Circuit had not had an opportunity to interpret the three-strike provision until May of 2016. Baker v. Commissioner, Georgia Department of Corrections2 tasked the court with determining what constitutes a strike under the PLRA and whether a serial litigant had accrued three strikes in the dismissals of his previous filings.3 The court determined that want of prosecution and lack of jurisdiction did not constitute strikes under the Act and concluded that the plaintiff was not barred from filing suits under the Act.4 The Eleventh Circuit's strict adherence to the text of the statute will work to keep the doors of the courthouse open for prisoner litigants, but may require additional restriction and further deterrence to curb the potential inundation of litigation.
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Convicted in October of 2012, Waseem Daker is a Georgia prisoner serving a life sentence for murder.5 Daker was convicted for the 1995 murder of Karmen Smith and the repeated stabbing of her son after the recovery and conclusive testing of DNA from Smith's body in 2009.6 A month after his conviction, Daker filed this lawsuit against the Commissioner of the Georgia Department of Corrections, alleging various civil rights violations. Daker filed with his complaint a petition to proceed in forma pauperis. In this petition, Daker contended he is indigent, unemployed, and indebted, and therefore eligible for in forma pauperis status. The Commissioner filed a motion to dismiss, arguing that Daker is no longer eligible to proceed in forma pauperis as he had accrued three strikes under the PLRA. The Commissioner identified six previous filings Daker submitted; four were dismissed for want of prosecution and two for lack of jurisdiction.7 An Eleventh Circuit judge denied Daker's petition because his filings were deemed frivolous in the last three dismissals.8 The Commissioner also submitted documents supporting the argument that Daker was not indigent, including an estimate of the value of Daker's home. The Commissioner also contended Daker's debt, allegedly caused by attorney fees, was suspect as Daker represented himself at trial. A magistrate judge denied Daker's petition to proceed in forma pauperis in February 2014, agreeing with both of the Commissioner's arguments. The district court accepted the magistrate judge's recommendation and dismissed Daker's complaint as he had failed to pay the filing fee after having been denied in forma pauperis status.9
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A. In Forma Pauperis Proceedings and the PLRA
Access to the courts is considered a fundamental right.10 However, for the impoverished litigant, entry into the court system is not easily accomplished. In response, the federal in forma pauperis statute, 28 U.S.C. § 1915,11 provides the indigent with access to federal courts by waiving riling fees associated with civil actions.12 This statute ensures that poor litigants have the same access to courts as those that can afford the associated costs.13 Today, many, if not most, in forma pauperis litigants are state and federal prisoners filing pro se civil rights actions against detention facilities and prison officials.14
The Prison Litigation Reform Act, passed by Congress in April of 1996, was developed to relieve the court system, which was overburdened by abundant frivolous lawsuits filed by prisoners.15 Senator Bob Dole, one of the PLRA's biggest proponents, stated, "prisoners have filed lawsuits claiming such grievances as insufficient storage locker space, being prohibited from attending a wedding anniversary party, and yes, being served creamy peanut butter instead of the chunky variety they had ordered."16 To ferret out such frivolous and meritless claims, the PLRA imposed limitations on prisoners' ability to file lawsuits and appeals in forma pauperis. The PLRA amended § 1915 by adding subsection (g), which provides a limitation known as the "three-strike provision."17 The provision states,
In no event shall a prisoner bring a civil action or appeal a judgment. . .if the prisoner has, on three or more prior occasions. . .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.18
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An exception to this provision is provided if the prisoner is in imminent danger of serious physical injury or harm.19 Prisoners with three strikes are not permanently barred from the courts; they are prohibited from filing in forma pauperis and must therefore pay filing fees in order to continue.20 In 1996, the year the PLRA was passed, there were approximately 1.2 million state prisoners and the number of § 198321 lawsuits was approaching one million.22 Following the passage of the PLRA, the number of § 1983 lawsuits by state prisoners had dropped to below 800,000 in 1997.23 The PLRA was a needed response to help relieve burgeoning federal court dockets and the drain on state resources to fund such litigation.24 With the addition of the three-strike provision, courts have been tasked with interpreting what constitutes a strike and under what circumstances a court should exercise its discretion to deny in forma pauperis status to serial litigants.
B. The Meaning of a Strike
In Andrews v. King,25 the United States Court of Appeals for the Ninth Circuit reviewed the dismissal of a § 1983 action by a California state prisoner against officials in the facility where he was incarcerated.26 After disagreeing with the district court having counted a dismissal for lack of jurisdiction as a qualifying strike, the Ninth Circuit sought to define the meaning of a strike under § 1915(g).27 The PLRA does not define the terms "frivolous" or "malicious." The Ninth Circuit relied on the ordinary and common meanings to define those terms. A case is deemed to be frivolous if there is no arguable basis in law or fact.28 A case is malicious if it expresses an intent or desire to harm another.29 The court held that the phrase "fails to state a claim on which relief may be granted" channels
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the language of Federal Rule of Civil Procedure 12(b)(6)30 and should be similarly understood.31 The Ninth Circuit determined that not all dismissals constitute strikes and, "§ 1915(g) should be used to deny a prisoner's in forma pauperis status only when, after careful evaluation of the order dismissing an action. . .the district court determines that the action was dismissed because it was frivolous, malicious, or failed to state a claim."32
C. Exhaustion of Appeals
In Jennings v. Natrona County Detention Center Medical Facility,33 Jennings filed a § 1983 claim against the medical facility where he was incarcerated alleging that he was denied medical treatment or had received delayed medical treatment. The district court granted leave to Jennings to continue in forma pauperis and later dismissed his action for failure to state a claim. Four days later, Jennings filed another civil rights action against an employee of the detention center. Again, the district court granted leave for Jennings to proceed in forma pauperis, but dismissed the action for failure to state a claim and frivolousness. Jennings was then denied leave to appeal the dismissal after the district court concluded that Jennings had collected three strikes in prior dismissals.34
The United States Court of Appeals for the Tenth Circuit determined whether Jennings had three or more qualifying dismissals.35 In counting Jennings' strikes, the district court included a habeas corpus action he had filed in 1997. The Tenth Circuit concluded this was an error as habeas petitions are not considered civil actions under § 1915(g).36 The district court also incorrectly counted the dismissals of the two complaints that were underlying both of Jennings' appeals. The Tenth Circuit held that a dismissal should not count against a litigant until their appeals have been waived or exhausted, as a district court error could bar a litigant from appealing an otherwise meritorious claim.37
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D. Premature Filing of an Appeal
In Tafari v. Hues,38 an inmate in a New York correctional facility filed a § 1983 action against various employees at the detention center where he was previously incarcerated. The district court granted Tafari in forma pauperis status, but his claim was dismissed as he had not exhausted the available administrative remedies.39 Once Tafari had exhausted these remedies, he refiled. The defendants, citing four previous dismissals, requested the court revoke Tafari's in forma pauperis status pursuant to § 1915(g). The prior filings were dismissed for lack of jurisdiction, failure to state a claim, frivolousness, and failure to exhaust the claim that was being appealed. In one of the actions, the appeal was dismissed for lack of jurisdiction as it had been filed prematurely.40 The district court agreed with the defendants and held that Tafari had accrued three strikes, thereby revoking his in forma pauperis status.41
The United States Court of Appeals for the Second Circuit reviewed this appeal to determine whether the premature filing of an appeal is frivolous for the purposes of § 1915(g).42 The term frivolous is defined as "lack[ing] an arguable basis either in law or in fact,"43 and refers to the underlying merits of the case. The Second Circuit reasoned that premature...
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