Oregon Court: Dismissals Are “Strikes” While Pending on Appeal
On July 6, 2017, the Oregon Court of Appeals upheld a lower court’s revocation of its filing fee waiver even though prior dismissals it had counted as strikes were still on appeal.
Oregon courts may waive or defer a prisoner’s filing fees and court costs in an action against a public body pursuant to ORS 30.643. The court may not waive or defer fees and costs, however, if the prisoner has filed three or more actions which were dismissed as “frivolous or malicious,” “failed to state a claim” or “sought monetary relief from a defendant who is immune.” See: ORS 30.645(1). Oregon’s statute was based on the three-strikes provision of the federal Prison Litigation Reform Act (PLRA).
Oregon prisoner Robert Woodroffe brought suit in state court against several prison and parole officials. After initially waiving his filing fees under ORS 30.643, the trial court granted the defendants’ motion to revoke that waiver. The court found that Woodroffe had previously commenced more than three prior actions in state court that had been dismissed for the reasons enumerated in ORS 30.645(1). The court gave him an opportunity to pay the filing fee but dismissed the action when he failed to do so.
The Court of Appeals rejected the defendants’ concession that the trial court had erred, and affirmed the revocation of the fee waiver. Acknowledging that ORS 30.645(1) was based on the PLRA, the defendants cited Silva v. DiVittorio, 658 F.3d 1090 (9th Cir. 2011), which held that dismissals pending on appeal do not count as strikes. Therefore, under Silva, Woodroffe’s prior dismissals still on appeal at the time of the trial court’s ruling should not have been counted as “strikes,” and the order revoking his fee waiver should be vacated.
The appellate court refused to accept that concession of error, however, noting that Silva was overruled by a subsequent U.S. Supreme Court decision in Coleman v. Tollefson, 135 S.Ct. 1759 (2015).
Coleman addressed a circuit split on the issue of counting appealed dismissals as strikes. “The Court resolved that split adversely to the Ninth Circuit’s reasoning in Silva,” the Court of Appeals observed. Rather, Coleman held “that ‘courts must count the dismissal even though it remains pending on appeal.’”
In light of Coleman, the Oregon Court of Appeals found that it was “not clear ... that the premise of defendants’ concession – namely that their proposed construction of ORS 30.645(1) is consistent with the federal statute on which it is based – is a sound one.”
See: Woodroffe v. Oregon, 286 Or. App. 645, 401 P.3d 285 (Or. App. 2017).
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Related legal case
Woodroffe v. Oregon
|Cite||286 Or. App. 645, 401 P.3d 285 (Or. App. 2017)|