Criminal Practice – Prisoner’s Lawsuits – In Forma Pauperis – ‘Three Strikes’ Rule – Complete Frivolity

Tolbert v. Stevenson (Lawyers Weekly No. 11-01-0174, 15 pp.) (Duncan, J.) No. 09-8051, Feb. 14, 2011; USDC at Charlotte (Mullen, J.) 4th Cir.

Holding: The “three strikes” rule that prohibits a prisoner from proceeding in forma pauperis if he previously filed three or more actions which were dismissed as frivolous only applies to actions dismissed entirely as frivolous, malicious or for failure to state a claim. The 4th Circuit joins the majority of appellate courts to interpret the plain language of 28 U.S.C. § 1915(g) in this manner, and reverses the district court’s dismissal of this prisoner’s complaint.

Before initiating the instant suit complaining about excessive force and retaliation by correctional officers, the prisoner had filed at least four other lawsuits while incarcerated. In each of these cases, some – but not all – of his claims were dismissed specifically as frivolous or for failing to state a claim.

The district court concluded the prisoner was not entitled to proceed as a pauper with this action because he had at least three actions dismissed for frivolity or for failure to state a claim for relief.

We conclude that “action” in § 1915(g) unambiguously means an entire case or suit. Therefore, § 1915(g) requires that a prisoner’s entire “action or appeal” be dismissed on enumerated grounds in order to count as a strike. Most circuits that have examined § 1915(g) agree with our straightforward reading.

The D.C. Circuit has previously held that courts have discretionary authority to deny IFP status to prisoners who have abused the privilege even when three strikes are not present. In fact, the government has asked us to exercise this authority to deny this prisoner IFP status even if we find he does not have three strikes.

The district court has not yet been called upon to exercise its discretionary authority as an alternative ground for denying the prisoner IFP status, and we decline to consider such a request in the first instance. We need not decide at this juncture whether such discretionary authority exists.

We decline to adopt the government’s position that partial strikes count as strikes under § 1915(g) so long as no claim contained therein ever reaches adjudication on its merits.

Because none of petitioner’s prior actions counts a strike under § 1915(g), we find the district court erred in denying the prisoner’s right to proceed IFP in this suit on the ground that he had three strikes.

Reversed and remanded.