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“Three Strikes” Provision Of PLRA Applies To Suits Filed While Incarcerated Even If Subsequently Released

By Brandon Sample

The Prison Litigation Reform Act (PLRA), which prohibits a prisoner from proceeding in forma pauperis (IFP) in a federal lawsuit if the prisoner has had three or more suits or appeals dismissed as frivolous, malicious, or for failure to state a claim, applies upon release to suits filed while incarcerated, the U.S. Court of Appeals for the Second Circuit decided June 15, 2010.

Tony Harris filed a 42 U.S.C. § 1983 suit against numerous Riker’s Island guards alleging that he was assaulted and denied medical treatment for his injuries. Harris was initially granted IFP status, but the district court later learned, after the defendants’ answer, that Harris had four prior suits dismissed as frivolous, malicious, or for failure to state a claim. Accordingly, invoking 28 U.S.C. § 1915(g), the district court revoked Harris’ IFP status and dismissed Harris’ suit.

By the time the district court dismissed Harris’ suit, though, Harris had been released. Harris appealed arguing that the dismissal was erroneous because he had been released at the time the dismissal order was entered. The Second Circuit disagreed.

Emphasizing the text of § 1915(g), “In no event shall a prisoner bring a civil action or appeal,” the Second Circuit held that § 1915(g) plainly applied to Harris’ suit.

“Because Harris was a prisoner at the time he ‘brought’ the present action, the text of the statute mandates that the three strikes rule apply,” the Second Circuit wrote.

The Second Circuit also rejected Harris’ argument that § 1915(g) was an affirmative defense that was required to be raised in the pleadings. “[T]he three strikes rule applies to appeals, where there are no pleadings, and so it is unlikely that Congress intended to require that it be raised as an affirmative defense,” the court concluded.

Finally, the Second Circuit approved of the use of docket sheets alone in determining whether a prisoner has “three strikes.” “Nothing in the PLRA or the case law of this or other courts [...] suggests that courts have an affirmative obligation to examine actual orders of dismissal,” the court wrote.

The district court’s dismissal order was accordingly affirmed in all relevant respects. See: Harris v. City of New York, 607 F.3d 18 (2nd Cir. 2010).

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Related legal case

Harris v. City of New York