News & Events

For It’s One, Two, Three Strikes and Prisoner Suits (Might Be) Out

This is the third and final post in a series examining the effect of inmate litigation on federal dockets. (See the first two articles here and here.)

The Prison Litigation Reform Act (PLRA), enacted by an overwhelmingly bipartisan vote to respond to the prisoner “litigation explosion,”[1] has reduced the number of prisoner suits.   But more than twenty years later, federal dockets remain loaded with inmate litigation. Forty percent of the Fifth Circuit’s docket is occupied by prisoner suits – about ninety percent of which are unsuccessful. My last article explored an under-utilized tool to deter frivolous prisoner claims: the Spears hearing; another such tool is the “Three Strikes Rule,” codified at 28 U.S.C. § 1915.

The Three Strikes Rule prohibits an inmate from filing suit in forma pauperis after that inmate has three claims dismissed as “frivolous, malicious, or [failing] to state a claim upon which relief may be granted,” with an exception if the inmate is “under imminent danger of serious physical injury.” So a prisoner may still file suit after having three dismissed as frivolous, malicious, or failing to state a claim – that is, three “strikes” – but to do so, the prisoner must pay the full filing fee. In the U.S. District Courts for the Northern and Southern Districts of Mississippi, that fee is about $400.

Still, many prisoners who have had at least three suits dismissed for the reasons enumerated in the Three Strikes Rule – are still filing, and filing a lot, in forma pauperis. Here are three such prisoners:

  • Gregory Konrath (as of January 18, 2017)
    • 60 cases filed in 2016 alone in the Northern District of Indiana
    • 35 additional cases filed in 9 other federal district courts
    • 12 suits dismissed as frivolous, malicious, or for failure to state a claim
  • Deric Lavelle May[2] (as of July 15, 2015)
    • 7 actions dismissed as frivolous, malicious, or for failure to state a claim in the Southern District of Alabama (all dismissals affirmed by the11th Circuit Court of Appeals)
    • 10 additional actions filed in the Northern District of Alabama, 5 of which were dismissed as frivolous, malicious, or for failure to state a claim
  • Allen Kelly (as of February 3, 2015)
    • 6 lawsuits dismissed as “frivolous” and 2 additional lawsuits “dismissed pursuant to the Three Strikes Rule” in the Middle District of Pennsylvania
  • Clearly, there must be unintentional loopholes (or maybe intentional carve-outs?) in the Three Strikes Rule that prevent the Rule from maximizing its effectiveness to prohibit multiple, frivolous filings from recreational inmate litigators. Holdings from various federal courts demonstrate these loopholes:

    Congress may have intended some or all of these results, or Congress may not have considered them at all. Regardless, such exceptions hinder the Three Strikes Rule from being fully utilized to deter frivolous prisoner lawsuits. Thus, amendments may be in order to clarify the Act and settle judicial debate.[4]

    Another impediment to the effectiveness of the Three Strikes Rule is the language of judicial opinions dismissing prisoner suits. That is, a prisoner may have a claim dismissed for one of the reasons enumerated in the Three Strikes Rule, but the opinion may not state that the dismissal is a “strike” – and thus, no “strike” is incurred. This issue is illustrated in the Allen Kelly case, listed above, delineating between cases “dismissed as frivolous” versus cases “dismissed pursuant to the three strikes rule.” To prevent this issue, counsel defending against such claims may move the court to expressly impose a “strike” pursuant to the Three Strikes Rule.

    The Three Strikes Rule was intended to deter prolific-litigator prisoners from filing frivolous actions by taking away the privilege to file in forma pauperis if those prisoners abused that privilege. However, if the Three Strikes Rule is to be truly effective to reduce repetitive, unwarranted inmate suits, the issues highlighted here should be addressed – either by Congress, by the courts, or by counsel defending against prisoner suits.


    Authored by Anna Little Morris

    © 2015 Barrett Photography: Michael & Dianne ALL RIGHTS RESERVED

    [1] See 141 Cong. Rec. S14611-01 at *S14626.

    [2] See May v. Hetzel, No. 15-0230-KD-M, 2015 WL 4389936 (S.D. Ala. July 15, 2015).

    [3] Despite this holding as to “strikes,” the D.C. Circuit Court of Appeals did exercise its discretion to deny in forma pauperis status to this plaintiff prisoner since he “abuse[d] the privilege” to file with such status. The court found the plaintiff was a “prolific filer” with eight appeals in a four-year span before the D.C. Circuit and at least fifteen additional cases pending in other courts – many of which sought the same relief and all but one of which was dismissed on summary judgment, a motion to dismiss, or for failure to respond. See Butler v. Dep’t of Justice, 492 F.3d 440, 446-47 (D.C. 2007), available at

    [4] Though Congress has not addressed any of these “strike” issues, the U.S. Supreme Court (in 2015’s Coleman v Tollefson) settled a circuit split over a Three Strikes Rule loophole: whether a dismissed prisoner suit is a “strike” if dismissal of that suit is still under appeal when a new case is filed. In a unanimous opinion, the Supreme Court sided with the circuit minority in holding that a dismissed in forma pauperis prisoner suit is a “strike,” even while an appeal of that dismissed decision is pending. The Court held that the statute “refers to whether an action or appeal ‘was dismissed’” – and that the term ‘dismissed’ is not “a sequence of events involving multiple courts.” The Court refrained from answering the related question of whether a prisoner would also be prohibited from filing in forma pauperis in the appeal of a third-strike dismissal, in addition to being prohibited from filing an altogether new suit with such status. The Supreme Court blog predicts that “it is difficult to see how the Court’s statutory analysis [in Coleman] wouldn’t apply to those facts, as well.”