Though “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,” (Turner v. Safley, 482 U.S. 78, 84, 1987) the rights of people inside prison walls vary dramatically from the rights of those outside of them. People who are incarcerated face abrogated rights: they are limited in if and how they can vote, how much they can earn, and even what they are allowed to read. And when indigent, prisoners are also limited in their ability to file lawsuits to protect their constitutional rights. The Prison Litigation Reform Act (PLRA), passed in 1996, constricted prisoners’ abilities to bring and win such suits. Notably, indigent plaintiffs seeking to avoid court filing fees by proceeding in forma pauperis (IFP) are barred from doing so under the PLRA’s “three-strikes rule.” Recently, in Brown v. Sage, the Third Circuit collapsed its two-step analysis for IFP applications under the PLRA. While the court’s previous test for IFP applications required assessing the plaintiff’s economic status before moving to the merits of the complaint, the Third Circuit held that courts can now assess the merits of the lawsuit “at any time.” While the Third Circuit’s decision may have been in line with those of other circuits, its new test expanded the definition of a “strike,” thereby further restricting “one of the few avenues for prisoners to seek redress for adverse conditions or other affronts to their rights.”
Generally, indigent plaintiffs filing lawsuits in federal court can avoid mandatory filing fees by moving to proceed IFP. But in an effort to create an economic disincentive for prisoner litigation, the PLRA mandated that prisoners proceeding IFP must still pay the filing fee (at the outset or in installments). Furthermore, prisoners cannot proceed IFP if they have had three previous cases dismissed for being frivolous, malicious, or failing to state a claim – with an exception if the prisoner is in imminent danger of serious injury. If they are barred from proceeding IFP under the three-strikes rule, they must pay full filing fees upfront in subsequent litigation.
Plaintiff Joseph Brown’s lawsuits arose while he was incarcerated in a federal prison in Lewisburg, Pennsylvania. In 2014 and 2016, Brown filed two separate complaints alleging mistreatment by prison officials. Specifically, Brown alleged nerve damage, scarring, and trauma from forced urination and defecation as a result of being placed in restraints by a corrections officer in Brown v. Kemmerer, and deliberate indifference to his serious mental health issues in Brown v. Sage. The District Court granted his motion to proceed IFP in Kemmerer, but denied his motion in Sage. The court found that Brown was barred by the three strikes rule based on three other lawsuits filed in California federal courts – all of which were dismissed for failure to state a claim. Following this decision, Brown filed a third action, Brown v. Dees, in which he alleged prison officials were deliberately indifferent to severe burns on his groin. Brown moved to proceed IFP but was again denied.
On appeal, the Third Circuit concluded only two out of the three California cases counted as strikes and thus Brown could continue IFP. The court applied its two-step test to Brown’s case. First, it asked if Brown was financially eligible to proceed without prepayment of filing fees, and second, it assessed whether his appeals were frivolous. Finding that Brown met the financial requirements and that the appeals were not frivolous, the court then turned to assess his IFP motions. The panel determined that one of Brown’s California cases did not constitute a strike because the complaint was never actually filed with the district court. Brown’s motions to proceed IFP were subsequently granted.
After a rehearing en banc, Judge Chagares, writing for the majority, reversed course. Judge Chagares ruled that the court would now use a flexible approach rather than a two-step analysis in adjudicating IFP claims. This new framework, the court held, would allow the court to consider the merits of a case and evaluate an IFP application in any order it chooses. In applying this flexible approach, the court skipped straight to the merits of Brown’s case. It concluded Brown’s third case in question was in fact a strike because the action had been “brought” within the context of the PLRA.
The court justified its new test on two grounds. First, it pointed to the purpose of the PLRA and highlighted the statute’s goal of conserving judicial resources. It argued that the new framework would permit courts to conserve these resources by screening cases earlier on. Second, the court reasoned that the new analysis would “align [the court] with [its] sister Courts of Appeals,” citing similar language from the Tenth, Fourth, Seventh, Second, and Ninth, Circuits.
After articulating its flexible approach, the majority applied the test to Brown’s case. The court took issue with Brown’s statutory interpretation of the phrase “brought an action.” Brown contended his action was never “brought” because the court dismissed his case without granting the IFP application, but the court disagreed. The majority argued that this interpretation could undermine the PLRA’s purpose of limiting frivolous lawsuits, and held instead that a prisoner has “brought an action” as soon as he submits a complaint to the district court. Next, the court rejected Brown’s argument that the court failed to explicitly state its reason for dismissing his case, finding that the district court had appropriately cited the reason as failure to state a claim. In sum, the Third Circuit found that Brown had indeed acquired three strikes. Brown was thus barred from proceeding IFP in his appeals.
Chief Judge Smith, joined by Judge Fuentes, concurred. Chief Judge Smith, who sat on the original panel with Judge Fuentes, wrote to clarify the change in their decision. Chief Judge Smith articulated that stare decisis requires panels to adhere to the precedent of the court, “no matter how flawed the reasoning of that precedent.” He expressed that judges could overrule precedent only en banc – and, after sitting en banc, he accepted the court’s decision to adopt a new standard for IFP claims.
In collapsing the analysis of the IFP test, the Third Circuit tightened the valves of access to the courts by allowing courts to dismiss indigent prisoners’ claims at any time. Importantly, the Third Circuit expanded the definition of a “strike” under the PLRA to include the submission of a complaint to the court.
As the definition of what constitutes a strike grows, the number of prisoners who can bring suits IFP will diminish. Plaintiffs’ filing fees can range in the hundreds of dollars; 28 U.S.C. §1914 sets the filing fee at $350 dollars for federal district court. Given that most prisoners are poor and that, if employed, their wages are low (the average maximum daily prison wage for non-industry prison jobs was $3.45 in 2017), it becomes clear that filing fees are an immense obstacle in practice.
Litigation provides an important form of accountability, particularly because the conditions of confinement are often brutal: overcrowding, violence, sexual assault, inadequate medical care and the like are pervasive features of the prison system. The PLRA’s purpose was to stop frivolous lawsuits while preserving meritorious suits. The majority in Sage would argue that their holding accomplishes just that. However, the Sage court’s focus on conserving judicial resources overlooks the harsh realities of prison conditions and the limited avenues for redress for prisoners.
As the PLRA approaches its 25th anniversary, it continues to facilitate judicial constriction of prisoner litigation in pursuit of reducing meritless claims, even though “prisoners are no more litigious than everyone else, and more than a tenth of their cases succeed in some way.” The Third Circuit’s decision in Sage, in line with recent rulings of the Supreme Court and many Courts of Appeals, continues this trend. Perhaps increased scrutiny of inhumane prison conditions, or an uptick in attention given to meritorious suits, could change this state of affairs—but for now, the courts remain hostile to prisoner litigation.