Statutory Interpretation – PLRA – Three Strikes Rule

Listen to this article

7^th Circuit Court of Appeals

Case Name: Fabian Greyer, et al. v. Illinois Department of Corrections, et al.

Case No.: 18-1290; 18-1458

Officials: WOOD, Chief Judge, and BAUER and ROVNER, Circuit Judges.

Focus: Statutory Interpretation – PLRA – Three Strikes Rule

One of Congress’s expressed goals when it passed the Prison Litigation Reform Act (“PLRA”) was to rein in the flood of prisoner litigation—all too often frivolous or vexatious, it thought—clogging the courts. See Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1633–34 & nn. 269–70 (2003) (citing Porter v. Nussle, 534 U.S. 516, 525 (2002); and 141 CONG. REC. 514, 627 (daily ed. Sept. 29, 1995) (statement of Sen. Hatch)). Of the many tools the law introduced to serve that purpose, one of the most potent is the so‐called “three strikes” provision. See 28 U.S.C. § 1915(g). The statute specifies that a prisoner may not proceed in forma pauperis if she “has, on [three] 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 ….” Id.

So far, so good. But no legislation spells out everything, and the PLRA is no exception. Our concern here is with the way in which courts administer the three‐strikes rule. Many have created elaborate forms requiring prisoner‐litigants to list their entire litigation histories. NORTHERN DISTRICT OF ILLINOIS, Complaint Under the Civil Rights Act, Title 42, Section 1983 U.S. Code, or Complaint Under the Constitution (“Bivens” Action), Title 28 Section 1331 U.S. Code (federal defendants), https://www.ilnd.uscourts. gov/_assets/_documents/_forms/_online/1983EDForm092007 .pdf. By collecting this information, a district court reviewing an indigent prisoner’s complaint can ensure itself that the prisoner plaintiff has not “struck out.”

But this solution has created at least two new problems: first, prisoners may not be the most reliable narrators of their litigation history; and second, there is a serious question whether the district court has created a “local rule imposing a requirement of form” that cannot be “enforced in a way that causes a party to lose any right because of a non willful failure to comply.” See FED. R. CIV. P. 83(a)(2). We focus on the first of these, as the parties have not briefed the second. Even prisoners with no incentive to lie often do not have ready access to their litigation documents and may not remember all of the details of their cases. The form, however, appears to be oblivious to these practical problems. The Northern District of Illinois sternly warns prisoners that “REGARDLESS OF HOW MANY CASES YOU HAVE PREVIOUSLY FILED, YOU WILL NOT BE EXCUSED FROM FILLING OUT THIS SECTION COMPLETELY, AND FAILURE TO DO SO MAY RESULT IN DISMISSAL OF YOUR CASE.” Id. (capitalization in original). The two cases now before us, which we have consolidated for disposition, are about the enforceability of that threat.

Vacated and remanded

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.