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District Court Held IFP Not Available on Appeal of Third Strike

by David Reutter

The Third Circuit Court of Appeal denied an indigent prisoner's motion to proceed forma pauperis (IFP) on appeal from dismissal of a third frivolous civil complaint. The court held that the denial was mandated by the plain language of the Prison Litigation Reform Act (PLRA) 28 U.S.C. § 1915(g). The court also held that a prisoner's side contention that his detention in the hostile and dangerous environment of prison is insufficient to qualify as an imminent danger or serious injury exception.

On September 17, 2015, Jason Parker, an indigent prisoner who had filed about 40 civil complaints in the Pennsylvania Federal District Court in about two years received his third qualifying dismissal of frivolous filings. He appealed to the Third Circuit and included an IFP motion and a motion arguing the imminent danger exception.

On March 24, 2016, a Third Circuit panel granted limited IFP solely to obtain counsel and address unanswered question from Coleman v. Tollefson, 135 S. Ct. 1759 (2015), asking, "whether the IFP statute affords a prisoner IFP status with respect to an appeal from a third qualifying dismissal under § 1915." The Supreme Court left that question unanswered because it was not directly before the court in Coleman.

The Supreme Court has clarified that a court's sole function is to enforce a statute's plain terms, so the Third Circuit conducted a review of the plain language of the statute. § 1915(g) plainly provides that IFP cannot be used by a prisoner with three or more "prior occasions" of dismissal for frivolous, malicious, or claimless fillings except under imminent danger.

The Ninth Circuit has interpreted "prior occasion" to mean a "prior-filed" suit, and not an "earlier stage of the same proceeding, thus allowing the indigent prisoner to obtain IFP STATUS on appeal of the third strike.

The Third Circuit reluctantly split from the Ninth Circuit to apply the literal language of the statute. The court noted that in Coleman, the Supreme Court held there is no ambiguity in the phrase "prior occasion." The Ninth Circuit perceived that there would be unfairness if an indigent prisoner were not allowed to pursue an appeal under IFP status.

The Third Circuit observed that the statute does not create an exception allowing IFP status on appeal of a third strike. The Third Circuit has already held that refusal to grant IFP does not violate the right to access the courts because it merely requires a prisoner to pre-pay filing fees. That concern cannot justify a court's failure to enforce the statute's literal meaning.

The term "prior" literally refers to events earlier in time. The Third Circuit found that the third strike was clearly earlier than the appeal. As for an "occasion," the Coleman Court held that "actions" and "appeals" make up separate and distinct "occasions." So, the Ninth Circuit's decision to combine the action and appeal as one occasion departs from the plain language of the statute. The Third Circuit concluded the third strike was a prior occasion that mandated denial of IFP status on the following occasion, the appeal.

The Third Circuit then addressed Parker's claim that he met the imminent danger of serious injury exception. Parker asserted that being in the hostile, dangerous environment of prison presented such imminent danger. The court held that while being in prison can be dangerous, incarceration alone cannot satisfy the "imminent danger" prong because every prisoner would qualify and the "exception would swallow the rule." That interpretation was rejected, and IFP was denied.

See: Parker v. Montgomery County Correctional Facility, No. 15-3449, F. 3d (3rd Cir. 2017).

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Related legal case

Parker v. Montgomery County Correctional Facility