Coleman v. Tollefson et al.

LII note: The U.S. Supreme Court has now decided Coleman v. Tollefson et al..


Under the three-strikes provision of the Prison Litigation Reform Act, does a dismissal of a frivolous or meritless suit at the district court level count as a third strike, precluding a subsequent suit, or must the appeals process be final for the strike to take effect?

Oral argument: 
February 23, 2015

The Supreme Court will decide whether, under the three-strikes provision of the Prison Litigation Reform Act (“§ 1915”), a district court’s dismissal of a suit counts as a strike while it is still pending on appeal or before the time for seeking appellate review has passed. Andre Lee Coleman, a prisoner in Michigan, was barred under § 1915 from proceeding on a fourth action in forma pauperis while the decision from a previous action was on appeal in district court. Coleman argues that the district court improperly dismissed his action when it counted the pending appeal of his action as a third strike in accordance with § 1915(g). However, Tollefson counters that the strike should be in effect after the district court dismissal due to the PLRA’s text and Congress’s desire to ban meritless claims. This decision has the potential to affect how the statute is interpreted in the lower courts and the caseload volume of court dockets.

Questions as Framed for the Court by the Parties 

Under the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. 1915(g), does a district court's dismissal of a lawsuit count as a "strike" while it is still pending on appeal or before the time for seeking appellate review has passed?


Andre Lee Coleman is a prisoner in the state of Michigan, and he has filed at least three actions or appeals of the type proscribed by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g). Coleman filed the last of the three actions under 42 U.S.C. § 1983 against six workers at the Baraga Correctional Facility in Michigan (collectively, “Tollefson”) where Coleman is serving a prison sentence. Coleman’s last action counted as a third strike under the PLRA according to the district court and the Sixth Circuit, even though the district court’s order in that case was on appeal. The Sixth Circuit reasoned that the three-strikes provision “requires district courts to count as strikes cases that are dismissed on the grounds enumerated in the provision even when pending an appeal.” The Sixth Circuit’s reasoning illustrates a split between it and, most notably, the D.C. Circuit, the Ninth Circuit, and the Fifth Circuit courts of appeals that do not count an appealed decision as a strike until the appellate process is complete.

The PLRA, enacted April 26, 1996, was created to amend the procedural rules for in forma pauperis actions. An in forma pauperis action (literally translating to “in the manner of a pauper”) allows indigent prisoners to file actions or appeals without being responsible for the costs of the suit. According to the Sixth Circuit, the PLRA aims to quell the increase in meritless claims brought by incarcerated persons and alleviate the burden placed on federal courts receiving the lawsuits.

The Sixth Circuit affirmed the lower court’s decision and held Coleman’s action un-appealable under the PLRA’s three-strikes provision. Coleman now appeals to the United States Supreme Court urging it to overturn the Sixth Circuit’s decision and to mend the circuit split.


The Supreme Court will decide whether, under § 1915(g), a district court’s dismissal of a suit counts as a strike while it is still pending on appeal or before the time for seeking appellate review has passed. Coleman argues that the text of §1915(g) is ambiguous and inconclusive as to whether a strike counts if the suit is still being appealed, thus a strike should only be implemented after the appeals process is complete and the occasion is complete. In opposition, Tollefson argues that the strike should be in effect after a district court dismissal because the text of the statute is neither ambiguous nor incomplete, and this solution would align with Congress’s intent.


Coleman argues that the text of § 1915(g) fails to mention if a dismissal still counts as a strike even if the ruling is under appellate review. Because of this lack of explanation, Coleman contends that the statute is ambiguous. Coleman further argues that this ambiguity is due in large part to the statute’s failure to define phrases such as “prior occasion” and “dismissal.” Coleman argues that “the text is inconclusive” and that the courts must use statutory construction tools to interpret the statute. In addition, Coleman argues that the Sixth Circuit’s interpretation of what constitutes a “prior occasion” is incorrect. According to Coleman, the Sixth Circuit’s interpretation is self-contradicting because if the dismissal at the district court level counts as a strike against other actions, it should count as a strike against an appeal as well. Coleman also argues that because the text is silent on the issue of appeal, the “better reading” is to have the strike count only once the appeal is final.

Tollefson counters that the text of § 1915(g) is neither ambiguous nor silent on the issue of when a strike is in effect. Particularly, Tollefson argues that § 1915(g) specifically states that a strike counts when “an action . . . was dismissed.” In addition, Tollefson contends that the statute makes a clear distinction by using the word “action” to refer to a claim in district court and the word “appeal” to refer to the appellate level. To support this argument, Tollefson refers to the Federal Rules of Civil Procedure, which state that the rules “govern the procedure in all civil actions and proceedings in the United States district courts.” Thus, Tollefson contends that the statute’s use of “action or appeal . . . that was dismissed” must be interpreted to mean that a strike can count when a claim is dismissed at either the district court level or appellate level. Tollefson challenges Coleman’s statutory interpretation by arguing that when a statute lists exceptions, silence in regard to an issue does not mean that Congress intended for more exceptions to the statute to exist. In support, Tollefson cites to other statutes in which Congress explicitly stated exceptions for when the legal effect occurred on appeal and not at the district court level. Tollefson further argues that the statute plainly states what is meant by “prior occasions.” Tollefson contends that a “prior occasion” is either when a district court action is dismissed or an appeal is dismissed, pointing out that if an action is dismissed at the district court level and on appeal, a petitioner receives two strikes instead of just one.


Tollefson argues that Congressional intent is consistent with having the strike count after a district court dismissal. Tollefson argues that Congress’s main intent in drafting § 1915(g) was to prevent prisoners from filing meritless and frivolous suits and to prevent prisoners from abusing their ability to bring suit in forma pauperis. In addition, Tollefson contends that preventing further claims after a prisoner reaches three strikes is exactly the harsh effect that Congress intended § 1915(g) to have. According to Tollefson, § 1915(g) is Congress’s way of punishing those that have abused the judicial system, and thereby wasted judicial resources. Tollefson further maintains that by separating the two, Congress did not intend for the action and appeal to be treated as a single occasion. Additionally, Tollefson contends that having a strike count when a district court dismisses the action is consistent with Congress’s intent of giving civil actions “immediate legal effect.” Tollefson argues that Congress includes language about “finality” only when it wants to “indicate that a judgment would not have legal effect until final on appeal” and because that was not done in § 1915(g), dismissals at the district court level should have an immediate legal effect. Tollefson supports his arguments by comparing the strike statute to res judicata. Tollefson argues that under res judicata principles, a district court judgment “retains all of its preclusive effect pending appeal.” Like claim preclusion, Tollefson contends, a district court dismissal should count as an immediate strike despite a pending appeal.

In opposition, Coleman argues that based on the statutory language and the underlying purpose of § 1915(g), Congress intended for a dismissal to count as a strike only once it is finished with the appeals process. With regards to statutory language, treating the dismissal and appeal as a single occasion, Coleman contends, would mean that a dismissal counts as a strike only after the appeal is final, which is consistent with Congressional intent. In addition, Coleman asserts that Congress intended for the statute to prevent meritless claims while encouraging meritorious claims. Coleman argues that having a strike count while the occasion is still pending on appeal could punish those with actual meritorious claims. For the purpose of § 1915(g), Coleman maintains that because Congress intended to promote meritorious claims, counting the strike after an appeal is final would allow the circuit courts to review district court decisions for potential errors. Additionally, Coleman argues that the strike statute should not be compared to res judicata because res judicata simply precludes a petitioner from filing similar claims while the three strikes statute prevents any lawsuit regardless of whether it is on a similar claim.


In this case, the Supreme Court has the opportunity to resolve a circuit split and determine whether an indigent prisoner is barred from filing a claim in forma pauperis if he or she has filed three or more actions previously dismissed under § 1915(g), which is the three-strikes provision of the PLRA. Coleman argues that the Sixth Circuit improperly upheld a lower court ruling barring him from proceeding in forma pauperis when the lower court determined that a previous dismissal on appeal counted against Coleman as a strike under § 1915(g) before a final decision was made on appeal. In opposition, Tollefson argues that Coleman is barred from bringing another action in forma pauperis while a previous decision is on appeal if the appealed decision was previously dismissed as frivolous. At stake includes the ease of judicial administration of the three strikes rule, overcrowding court dockets, and prisoners’ access to the courts.


Supporting Coleman, the National Association of Criminal Defense Lawyers (“NACDL”) argues that Coleman’s interpretation of § 1915 is a simple rule that is easy for courts to apply. The NACDL claims that a prior dismissal should count as a strike once appellate proceedings are complete and final decisions are made. The NACDL explains that the test should consider whether an appeal from a previous dismissal is pending or whether a deadline for seeking further review has passed. If the appeal is pending and the deadline has not passed, the NACDL continues, dismissal should not be equivalent to a strike under § 1915(g). The NACDL argues that following the Sixth Circuit’s interpretation would “create bizarre results” and create uncertainty in the application of § 1915(g). Additionally, such an interpretation, according to the NACDL, would inadvertently penalize prisoners in a way that the PLRA did not intend: unfairly preventing prisoners from “pursuing a valid claim” based on the incorrect dismissal of a previous claim.

The United States, supporting Tollefson, argues that Coleman’s concerns regarding workability and administration of § 1915(g) are unfounded, asserting that a prisoner losing a strike because of a later reversal on appeal only happens on rare occasions. The United States argues that in Coleman’s hypothetical situation, a third strike alone is insufficient as a basis for blocking the prisoner from filing in forma pauperis: the prisoner must also have the intention of filing a fourth suit “while the third strike is on appeal but before it is overturned.” Additionally, the United States adds that in Coleman’s hypothetical situation, the statute of limitations governing the fourth suit must have expired during the third strike’s appellate process for the prisoner to suffer harm (by missing the fourth suit’s filing deadline). Such an occurrence, the United States argues, is highly unlikely.


Thirty-three professors, supporting Coleman, argue that the PLRA was enacted to allow courts to fairly consider potentially meritorious claims without the risk that this fair consideration would be diluted by an influx of meritless claims. Also supporting Coleman is the Constitutional Accountability Center which argues that the Sixth Circuit’s interpretation of the three-strikes provision would effectively limit prisoner access to the courts regardless of whether all previous suits were improperly dismissed in lower courts, thus calling into question the fundamental right of access to the courts.

In opposition, Tollefson argues that the PLRA aims to reduce in forma pauperis proceedings by creating the three-strike provision in § 1915(g) at both the district court level and on appeal. He explains that requiring prisoners to pay filing fees prior to appealing is not unfair or different from the process that non-incarcerated individuals must use and furthers the PLRA’s intent to make prisoners “think twice” before filing what could potentially be a meritless appeal. Additionally, Tollefson argues that indigent prisoners who are barred from filing in forma pauperis by § 1915(g) may still file their appeals by paying the filing fee and proceeding through the appellate process in a normal manner; thus, the right to access to the courts is not implicated.


This case will determine when a third strike is in effect under the three strikes provision of the PRLA. More specifically, the Court will determine if a third district court dismissal can be appealed. Coleman argues that a strike should only be in effect after the appeals process is final and supports his arguments by analyzing the statute’s text and Congress’s intent. To the contrary, Tollefson maintains that the strike should count immediately after a district court’s dismissal. The resolution of this case may impact the ability of prisoners to access the courts, which in turn may affect the volume of cases for both the lower and appellate courts.

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