This term, the Supreme Court could chip away at one of the most outrageous federally legislated inequities affecting prisoners. Almost all indigent people in the United States can file suit in federal court in forma pauperis, or IFP, free of some of the steep litigation fees that would otherwise keep them from pursuing legal claims. The sole exception? Prisoners who have had three prior actions or appeals dismissed.
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding ... 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 Supreme Court has ruled that prisoners who are appealing their “third strike,” or third dismissal, are nonetheless barred from pursuing additional claims IFP while the appeal is ongoing. But the Justices haven’t yet ruled on whether a prisoner can appeal their third strike IFP.
When Jason Parker attempted to appeal his third strike, a district court dismissal, IFP, the Third Circuit, which hears federal appeals from Delaware, New Jersey, and Pennsylvania, granted his request for counsel, but didn't proceed to his appeal; rather, they assigned his attorney the threshold question whether he should be able to proceed IFP. Parker argued that:
although he has had cases dismissed on enumerated grounds on three “occasions,” only two of them were “prior” to this appeal. To reach that result, Parker contends that “prior” does not refer to “occasions” at all, but rather to “actions or appeals filed prior to the action that is on appeal.”
Parker’s reasoning is consistent with that of the Ninth Circuit, which has ruled that an indigent prisoner should be able to appeal a third strike IFP because it’s part of the same proceeding, to oversimplify.
While judgments are immediately preclusive as to successive suits, they are certainly not preclusive to the panel on appeal. Denying IFP review of a district court's third strike dismissal would prevent us from performing our “appellate function” and would “freeze out meritorious claims or ossify district court errors.”
Unfortunately for Parker, the Third Circuit disagreed.
In our view, the term “prior” sets a temporal parameter, referring only to strikes accrued earlier in time than the notice of appeal. All later-accrued strikes—even if imposed after the filing of the notice of appeal but before the prisoner’s IFP motion is decided—are not “prior” strikes, and therefore do not “count” for purposes of the three strikes rule. If the statute did not include the term “prior,” then any strikes, including those issued after a prisoner files an appeal but before IFP status is awarded or denied, could contribute to the strike count. Thus, in our view, “prior” has meaning.
By barring Parker from appealing his third strike IFP, the Third Circuit effectively foreclosed his right to appeal the decision that precludes him from ever filing suit again. That’s why Parker’s appealing that decision to the Supreme Court.
This restriction is just one of a suite of limitations imposed on prisoners—and no one else—by the Prison Litigation Reform Act (PLRA). Proponents of this 1996 law claimed it was a judicious response to an increase in prisoner litigation and frivolous suits. (Granted, Parker filed 40 federal complaints in two years.) But the PLRA not only cuts off access to justice for indigent prisoners with three dismissals, it makes it easier for courts to dismiss prisoners’ claims.
A victory for access to justice in this case could pave the way for additional wins for prisoners’ rights.