Fifth Circuit Holds PLRA’s ‘Three-Strikes’ Provision Does Not Apply to Actions Removed From State Court
by Matt Clarke
On June 9, 2022, the U.S. Court of Appeals for the Fifth Circuit held that prisoners claiming indigent status in a federal civil rights suit are not barred by the ‘three strikes’ provision of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, if the prisoner originally filed suit in state court and a defendant then removed it to federal jurisdiction.
PLRA amended 28 U.S.C. § 1915(g) to prevent a prisoner from proceeding in forma pauperis (IFP) in federal court after having three other federal suits dismissed, unless in imminent danger of serious physical harm. In its ruling, the Court joins five other circuits — the Third, Seventh, Eighth, Ninth and the Eleventh — which have all arrived at the same conclusion: The provision does not apply to suits begun in state court. The Eighth and Eleventh circuit’s decisions were the most recent. [See: PLN, Dec. 2022, p.26 and p.24, respectively.]
Louisiana prisoner Gator Mitchell filed suit in state court accusing Rayburn Correctional Center guards Robert Goings, John Craine, Gary King and Brink Hillman of abuse and intimidation. He also alleged warden Robert Tanner took no action after Mitchell reported it. The state court granted Mitchell leave to proceed IFP and waived his filing fee.
With the other defendants’ consent, Goings then removed the case to the federal court for the Eastern District of Louisiana, paying the filing fee there. A few weeks later, Mitchell filed an amended complaint raising the same claims.
Defendants then filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), alleging Plaintiff had failed to exhaust administrative remedies, as required by another provision of PLRA. Mitchell opposed the motion and sought limited discovery on the issue.
The parties consented to a trial by a magistrate judge, who found Mitchell had at least three prior ‘strikes’ — federal civil rights complaints that were dismissed as frivolous. The magistrate also ruled that 28 U.S.C. § 1915(g) applied to actions removed from state court, so Mitchell could not proceed IFP without showing he was in imminent danger of serious physical injury, in order to meet the exception. Because he had not made such a showing, the magistrate judge dismissed the case without prejudice, specifying that Mitchell could refile after paying the filing fee. Mitchell appealed.
The Fifth Circuit began by noting that dismissal without prejudice is a final decision, allowing it to review the district court’s interpretation of the PLRA de novo. It then held that actions removed from state court do not count as ‘strikes’ under § 1915(g). Why not? Because the prisoner did not “bring” the action in federal court — the defendants did so. Thus, Plaintiff cannot be barred from proceeding IFP. The district court’s judgment was therefore vacated and the case remanded for further proceedings. See: Mitchell v. Goings, 37 F.4th 169 (5th Cir. 2022).
The case has now returned to the district court, and PLN will report developments as they are available. Mitchell is represented by Baton Rouge attorney Donna U. Grodner. See: Mitchell v. Goings, USDC (E.D. La.), Case No. 2:20-cv-01333.
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