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PLRA Does Not Prevent In Forma Pauperis Appeal of Case that Resulted in Third Strike

by Matt Clarke

On July 18, 2019, the Fourth Circuit Court of Appeals held that the Prison Litigation Reform Act (PLRA) does not prohibit a prisoner from being granted in forma pauperis status when appealing the dismissal of a case that resulted in his third strike under 28 U.S.C. § 1915(g).

South Carolina prisoner Therl Taylor filed three federal civil rights lawsuits against various government officials. His December 14, 2015 complaint alleged that employees of the South Carolina Department of Corrections and the City of Allendale denied him access to the prison’s mailroom services, interfering with his access to the courts. His June 20, 2016 suit claimed that prison staff violated his rights by transferring him to a new unit, and included general allegations of “corruption, drug smuggling, [and] high rates of violence.” His last civil rights action, filed on September 6, 2016, again alleged prison staff had improperly transferred him to another unit and confiscated his personal belongings.

“In a set of three orders issued on the same day, the district court dismissed each complaint for failure to state a claim and so assigned Taylor three ‘strikes’ under § 1915(g),” the Fourth Circuit stated in a consolidated appeal of Taylor’s lawsuits.

The appellate court conditionally granted in forma pauperis status, and appointed attorney Adam B. McCoy with the Wake Forest University School of Law to represent Taylor on the narrow issue of whether a trial court’s dismissal of a case “only qualifies as a strike for PLRA purposes if it occurred in a different lawsuit.”

The Court of Appeals had previously considered that issue in Henslee v. Keller, 681 F.3d 538 (4th Cir. 2012), and concluded that a prisoner could proceed in forma pauperis because “counting the district court’s dismissal as a third strike would effectively insulate the dismissal from appellate review.”

However, after Henslee was decided, the U.S. Supreme Court addressed a related issue in Coleman v. Tollefson, 135 S.Ct. 1759 (2015). Coleman had filed several additional lawsuits while his third strike was on appeal. The Coleman court held that a strike was final when issued, therefore a plaintiffcould not proceed in forma pauperis in new lawsuits unless he fit the “life-in-danger” exception set forth in § 1915. Based on Coleman, the Fourth Circuit decided to revisit the issue of whether a third strike under the PLRA could prevent an in forma pauperis appeal in the same case.

The Court of Appeals noted that the Coleman court “found it unnecessary to decide the question we faced in Henslee and we face again today: that is, may a prisoner proceed in forma pauperis on ‘appeal from the trial court’s dismissal of his third complaint?’” In Coleman, the United States, appearing as amicus curiae for the defendant prison officials, “argued that § 1915(g) was best read to afford a prisoner in forma pauperis status on appeal from the third qualifying dismissal.”

The appellate court held that § 1915(g)’s use of the term “prior occasions” meant that the qualifying strikes could not have been from the same action – a position also advocated by the United States in Coleman. Further, Taylor’s inability to appeal at least two of his cases was due to the district court’s dismissal of all three on the same day.

Since Taylor had no control over the court’s case management schedule, it should not be held against him. Applying the substantial portion of the reasoning in Henslee not rejected by the Supreme Court in Coleman, the Fourth Circuit concluded “that a district court’s dismissal of a prisoner’s complaint does not, in an appeal of that dismissal, qualify as a ‘prior’ dismissal” for PLRA purposes. Therefore, Taylor was allowed to proceed in forma pauperis. One justice issued a lengthy dissenting opinion, arguing for a more restrictive interpretation of § 1915(g). See: Taylor v. Grubbs, 930 F.3d 611 (4th Cir. 2019). 

Related legal case

Taylor v. Grubbs