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Journal of Law and Policy

Abstract

Since 1892, federal legislation has provided for the waiver of court filing fees so indigent plaintiffs can access the courts. In 1996, the Prison Litigation Reform Act amended the law. Citing an explosion in the number of prisoner filings (and ignoring the commensurate explosion in the size of the prisoner population), Congress sought to disincentivize prisoners from filing federal actions by denying them an outright waiver and instead requiring them to pay filing fees in installments. It also added a “three strikes” rule. Under the latter provision, if a prisoner files three or more actions or appeals that are dismissed as frivolous, malicious, or for failing to state a claim, that prisoner cannot file a new action or appeal without prepaying the entire filing fee upon commencement. While Congress insisted that the three strikes rule would reduce the burden on the federal courts, in practice, it often requires a complex and time-consuming analysis and has resulted in a bevy of Circuit splits. In 2020, the Supreme Court was presented with an opportunity to address five issues that have generated Circuit splits when Arthur Lomax, pro se, filed a petition for a writ of certiorari, seeking Supreme Court review of the lower courts’ determination that he had three strikes under 28 U.S.C. § 1915(g). Yet, when the Supreme Court granted certiorari, the Court narrowed its review to such an acute point that it resolved only one of the Circuit splits. Although the Supreme Court stated that it was its “duty to call balls and strikes,” it seemed to abandon this duty once it called two strikes rather than the required three. This Article examines Lomax’s third strike, provides analysis of the four outstanding Circuit splits, includes charts that illustrate the legal posture of each Circuit with respect to these Circuit splits, and shows that most Circuits would hold that Lomax does not have three strikes. Lomax illustrates that after thirty years, 28 U.S.C. § 1915(g) has only grown in complexity and generated inconsistencies. Whether a prisoner has three strikes too often depends on their jurisdiction rather than the substance of their dismissed actions. This Article argues that § 1915(g) should be amended—making the provision permissive rather than mandatory—so that federal courts may exercise their discretion to decide cases in the most efficient manner while availing themselves of the panoply of sanctions available if a litigant abuses the judicial process.

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