Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Advanced Search Go
Free Newsletter Sign Up

Prisoner ‘Three Strikes Rule’ Case Fails to Sway Justices (2)

June 8, 2020, 2:18 PMUpdated: June 8, 2020, 7:14 PM

The U.S. Supreme Court made it more difficult for prisoners to file suits without having to pay a $400 filing fee, a decision that could keep workloads from exploding at federal courts.

The justices on Monday unanimously upheld an appeals court decision, ruling against a Colorado inmate who challenged part of the “three strikes” criteria that courts use to deny prisoner suits filed at no cost disputing their conviction or sentence. The rule is meant to weed out frivolous cases.

The high court ruled that dismissals “without prejudice"—meaning litigants can try again—should be counted under the Prison Litigation Reform Act’s prohibition against inmates filing a free, or “in forma pauperis,” suit if they’ve already had three or more of them dismissed.

“In line with our duty to call balls and strikes, we granted certiorari to resolve the split,” Justice Elena Kagan wrote for the court, in a short opinion heavy on baseball puns. “The text of the PLRA’s three-strikes provision makes this case an easy call.”

The lower courts of appeals were divided on that question.

David Shapiro of the MacArthur Justice Center said it’s unlikely many prisoners will be able to afford that filing fee given the lack of opportunity in prison to earn money. The MacArthur Justice Center filed an amicus brief in the case supporting the prisoner.

Outside of a very narrow exception for prisoners in imminent danger of serious physical injury, these cases simply won’t get brought, Shapiro said.

While the ruling may mean that an individual prisoner may lose out on filing another suit, “the overall litigation system—including for prisoners who file meritorious lawsuits, as well as overburdened State and local governments who are often sued by prisoners—benefits greatly,” said appellate litigator Misha Tseytlin, who filed an amicus brief backing the prison officials.

Tseytlin, a partner at Troutman Sanders, noted that the plaintiff was unable to identify a single example of a prisoner unable to cure a meritorious problem.

That’s not surprising given the law, Shapiro said, adding that very few prisoners are going to bring another suit after they’ve got three strikes and it isn’t hard to accrue them. If you lose in the trial court and appeal, that can count as two strikes rather than just one, he said.

Notably, the statute itself doesn’t distinguish between prejudicial and nonprejudicial dismissals, the court said. The reform act was meant to stem the “flood of nonmeritorious” prisoner litigation.

But a decision going the other way could crowd the docket and potentially delay, or even preclude, consideration of meritorious suits, the justices said.

The ruling also highlights the difficulties in access to counsel for prisoners, he added. A prisoner who has that access can consult their attorney before pursuing litigation. A lawyer in that situation will provide an important gate keeping function, Shapiro said.

Prisoner suits took up nearly 25% of federal court civil dockets before the PLRA was enacted more than 20 years ago. Now that number is closer to 10%, according to the Department of Justice.

Kagan noted that the Colorado prisoner challenging the rule here, Arthur Lomax, is “no rookie litigant.”

Based on his three previous dismissals, Lomax “struck out,” Kagan said. Now, he can’t continue his suit against Colorado officials for expelling him from a sex offender treatment program unless he pays that $400 filing fee.

The case is Lomax v. Ortiz-Marquez, U.S., No. 18-8369.

(Updates with comments from Troutman Sanders' Misha Tseytlin and David Shapiro of the MacArthur Justice Center)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at; Andrew Harris at