930 F.3d 611
4th Cir.2019Background
- Therl Taylor, an indigent state prisoner, filed three pro se civil-rights complaints in the District of South Carolina; the district court dismissed each for failure to state a claim and designated each a § 1915(g) "strike."
- Taylor timely appealed each dismissal and moved to proceed in forma pauperis (IFP) on appeal; defendants opposed. The Fourth Circuit consolidated the appeals and provisionally granted IFP while briefing focused on whether a district-court dismissal counts as a "prior occasion" for purposes of § 1915(g) when the appeal challenges that very dismissal.
- The central legal question is whether a prisoner may obtain IFP status on appeal from the district court’s dismissal that would constitute his third § 1915(g) strike.
- The Fourth Circuit had previously decided this issue in Henslee v. Keller, holding a district-court dismissal does not count as a prior strike on appeal from that dismissal; the Supreme Court in Coleman v. Tollefson rejected some of Henslee’s reasoning but expressly left this precise question unresolved.
- The majority (Motz, J.) reaffirms Henslee’s outcome: a district-court dismissal does not count as a "prior" dismissal on appeal from that dismissal, so Taylor may proceed IFP on these appeals.
- Judge Richardson dissents, arguing Coleman’s textual analysis controls, that Henslee’s reasoning is undermined by Coleman, and that the statute unambiguously bars IFP appeals once three qualifying dismissals have been "brought," even if one of those dismissals is the one being appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a district-court dismissal that is the subject of the appeal counts as a "prior occasion" under 28 U.S.C. § 1915(g) | Taylor: "Prior occasions" means dismissals in earlier, separate actions; the dismissal on appeal should not count, so he may proceed IFP | Appellees: "Prior occasions" includes the district-court dismissal being appealed; that dismissal counts as a strike and bars IFP | Majority: A district-court dismissal does not count as a "prior" occasion on appeal from that dismissal; IFP granted |
| Whether Coleman v. Tollefson forecloses the Henslee approach | Taylor: Coleman left this precise question open and does not control | Appellees: Coleman rejected Henslee’s ambiguity rationale and supports treating the dismissal as a strike | Majority: Coleman did not decide this precise issue; its reasoning does not compel a different result |
| Whether statutory text requires counting strikes as of the time of filing the appeal | Taylor: Strikes should be counted from prior, separate actions; word "prior" has effect | Appellees: Strikes exist once dismissals have been "brought" and thus bar an IFP appeal | Majority: Interpreting "prior" to refer to prior actions preserves the word’s meaning and avoids freezing out appellate review; thus strikes are counted from prior actions |
| Whether policy concerns (docket management, appellate review) permit carving out an exception | Taylor: Allowing IFP on appeal from third-strike dismissal prevents appellate freeze-out and arbitrary results based on docketing | Appellees: Policy concerns are for Congress; statute is strict to deter frivolous filings | Majority: Policy supports allowing IFP in this narrow context; Coleman’s ‘‘leaky filter’’ concern is inapposite here |
Key Cases Cited
- Henslee v. Keller, 681 F.3d 538 (4th Cir. 2012) (held a district-court dismissal does not act as a strike on appeal from that dismissal)
- Coleman v. Tollefson, 135 S. Ct. 1759 (2015) (Supreme Court: a district-court dismissal counts as a strike for subsequently filed, separate actions; left undecided whether the dismissal counts on appeal from that dismissal)
- Tolbert v. Stevenson, 635 F.3d 646 (4th Cir. 2011) (describes PLRA IFP fee-payment regime)
- Richey v. Dahne, 807 F.3d 1202 (9th Cir. 2015) (joins view allowing IFP on appeal from a third-strike dismissal)
- Parker v. Montgomery Cty. Corr. Facility/Bus. Office Manager, 870 F.3d 144 (3d Cir. 2017) (reached contrary result to majority here, treating the dismissal as a strike)