Ordinarily, an indigent litigant may proceed in forma pauperis (IFP), which allows the litigant to file a civil action without paying fees or certain expenses. But under the federal Prisoner Litigation Reform Act, a “three strikes” provision precludes IFP status to a prisoner who “has, on 3 or more prior occasions, while incarcerated …, 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.” 28 U.S.C. § 1915(g). But what if the prisoner is appealing one of the “strikes” and the appeal is still pending; does it still count as a “strike”? “Yes,” answers a unanimous Supreme Court.
By 2010, Coleman had three federal lawsuits dismissed as frivolous or on other grounds covered by § 1915(g). When Coleman filed four new federal lawsuits in 2010 and 2011, he moved to proceed IFP in each. He claimed his third dismissed lawsuit didn’t count as a “strike” because he had appealed the dismissal and the appeallate court had not yet ruled. (Slip op. at 3-4). The Court rejects this claim, citing the plain language of the statute and the purpose of the PLRA:
…. A prior dismissal on a statutorily enumerated ground counts as a strike even if the dismissal is the subject of an appeal. That, after all, is what the statute literally says. The “three strikes” provision applies where a prisoner “has, on 3 or more prior occasions … brought an action or appeal … that was dismissed on” certain grounds. § 1915(g) (emphasis added). Coleman believes that we should read the statute as if it referred to an “affirmed dismissal,” as if it considered a trial court dismissal to be provisional, or as if it meant that a dismissal falls within the statute’s scope only when the litigant has no further chance to secure a reversal. But the statute itself says none of these things. (Slip op. at 4-5).
Finally, the statute’s purpose favors our interpretation. The “three strikes” provision was “designed to filter out the bad claims and facilitate consideration of the good.” [Jones v. Bock, 549 U.S. 199,] 204 [(2007)]. To refuse to count a prior dismissal because of a pending appeal would produce a leaky filter. Appeals take time. During that time, a prisoner could file many lawsuits, including additional lawsuits that are frivolous, malicious, or fail to state a claim upon which relief may be granted. Indeed, Coleman filed these four cases after he suffered his third qualifying dismissal, in October 2009, and before the affirmance of that order, in March 2011. (Slip op. at 7).
A majority of federal circuits had held that a dismissal being appealed didn’t count as a “strike,” so the Court’s decision overturns those rulings. (Slip op. at 4). The Seventh Circuit is not among the majority; in fact, it holds that a district court dismissal serves to deny IFP status on the appeal of the underlying dismissal. Robinson v. Powell, 297 F.3d 540, 541 (7th Cir. 2002). Coleman argues that the holding in Robinson is one of the unfair results of reading § 1915(g) to count “strikes” that are under appeal, and the Solicitor General agrees with Coleman on this point. But the Supreme Court doesn’t reach this question because Coleman isn’t appealing from his third “strike.” (Slip op. at 8). Instead, it says, “[i]f and when the situation that Coleman hypothesizes does arise, the courts can consider the problem in context” (slip op. at 9)—which may mean a challenge to Robinson‘s reasoning is in order.
Wisconsin has its own PLRA, with a nearly identical “three strikes” provision in § 801.02(7)(d). Expect our courts to follow the Supreme Court and construe § 801.02(7)(d) to count a “strike” even if the dismissal is being appealed. Note, though, that Robinson won’t apply to Wisconsin law as currently written; our statute says that a prisoner with three strikes has to pay fees to commence certain actions, and an appeal isn’t one of them. State ex rel. Adell v. Smith, 2000 WI App 188, 238 Wis. 2d 655, 618 N.W.2d 208 (per curiam).