ANDRE LEE COLEMAN, named as “Andre Lee Coleman-Bey” on complaint, Plaintiff-Appellant, v. TODD TOLLEFSON, et al., Defendants-Appellees.
No. 11-1502
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: October 23, 2013
File Name: 13a0303p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Western District of Michigan at Marquette. No. 2:10-cv-337—R. Allan Edgar, District Judge. Before: BATCHELDER, Chief Judge; DAUGHTREY and ROGERS, Circuit Judges.
ON BRIEF: Kevin Himebaugh, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. Andre Lee Coleman-Bey, Ionia, Michigan, pro se.
ROGERS, J., delivered the opinion of the court, in which BATCHELDER, C. J., joined. DAUGHTREY, J. (pp. 6–11), delivered a separate dissenting opinion.
OPINION
ROGERS, Circuit Judge. Under the three-strikes provision of the Prison Litigation Reform Act (PLRA),
Coleman-Bey, pro se, filed a complaint in the Western District of Michigan alleging claims under
The district court properly relied on the three-strikes provision of the PLRA, which prohibits prisoners who have brought multiple frivolous appeals from receiving pauper status:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
First, Coleman v. Lentin, No. 2:92-cv-120 (W.D. Mich. Aug. 31, 1992), qualifies as a strike because the docket clearly indicates that when the district judge adopted the report and recommendation of the magistrate judge and dismissed the case, he did so because he found Coleman-Bey‘s complaint to be “frivolous and without merit.” Coleman-Bey argues that the dismissal of Coleman v. Lentin does not qualify as a strike because the district court failed to follow various procedural requirements outlined in
Second, the dismissal of Coleman v. Kinnunen, No. 2:05-CV-256, 2008 WL 724780 (W.D. Mich. Mar. 17, 2008), counts as a strike because it was dismissed for failure to state a claim. Coleman-Bey argues that the dismissal of this complaint does not count as a strike because it is not a dismissal for “failure to state a claim” but rather an order granting summary judgment for absence of material issues of fact. The order of the district court, however, clearly enough indicates that the dismissal was made pursuant to a Rule 12(b)(6) motion to dismiss for failure to state a claim. Section 1915(g)‘s language was clearly modeled after Rule 12(b)(6), and dismissals pursuant to that rule count as a strike. See Thompson v. DEA, 492 F.3d 428, 437–38 (D.C. Cir. 2007). The issue of whether an adverse summary judgment may be a strike is not before us.
Third, Coleman v. Sweeney, No. 2:09-cv-178, 2009 WL 3270006 (W.D. Mich. Oct. 8, 2009), counts as a strike, even though the district court‘s order in that case was on appeal at the time that the instant suit was brought. A literal reading of
Not only does this rule follow the plain meaning of the statute, but it is also consistent with how judgments are treated for purposes of res judicata. Under that doctrine, cases on appeal have preclusive effect until they are reversed or vacated. See In re Dubin Sec., Inc., 133 F.3d 377, 381 (6th Cir. 1997).
We recognize that several circuits have held that dismissal does not count as a strike until the litigant has exhausted or waived his appellate rights. See Henslee v. Keller, 681 F.3d 538, 541 (4th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1100 (9th Cir. 2011); Smith v. Veterans Admin., 636 F.3d 1306, 1310–11 (10th Cir. 2011); Thompson v. DEA, 492 F.3d 428, 432 (D.C. Cir. 2007); Nicholas v. Am. Detective Agency, 254 F. App‘x 116, 116 (3d Cir. 2007) (per curiam); Campbell v. Davenport Police Dep‘t, 471 F.3d 952, 953 (8th Cir. 2006) (per curiam); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996); see also Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010) (reserving judgment on whether an appealed dismissal may be a strike, but suggesting that denying an appeal of a third strike would be an illogical result).
Many of these cases rely on the unfounded concern that treating an appealed dismissal as a strike would preclude that very appeal. They reason that such a result would be a departure from the usual practice under the Federal Rules of Civil Procedure, which is to grant all litigants an appeal as of right from all final district court decisions. See, e.g., Silva, 658 F.3d at 1098–99. In Thompson, 492 F.3d at 432, the D.C. Circuit asserted that counting a third strike while it is on appeal “would, within those narrow set of cases in which the third strike is appealed, effectively eliminate our appellate function.” The Fifth and Ninth Circuits also warned against a “hyper-literal reading of the statute [that] might . . . bar a prisoner‘s appeal of an erroneous third strike.” Silva, 658 F.3d at 1099 (quoting Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996)). The Fifth Circuit has also suggested that to prevent the appeal of the third strike would violate Congress‘s purpose “only to penalize litigation that is truly frivolous, not to freeze out meritorious claims or ossify district court errors.” Adepegba, 103 F.3d at
The concern about this anomalous result is not warranted, however, because the third strike may be appealed even though it would count as a strike with regard to a fourth or successive suit. The statute states that the bar on in forma pauperis actions is only triggered when “the prisoner has, on 3 or more prior occasions . . . brought an action or appeal . . . that was dismissed” because it was frivolous, malicious, or failed to state a claim.
The dismissal of Coleman v. Sweeney, never reversed, accordingly counted as a strike continually from when it was entered. We therefore do not rely on the fact that the dismissal had been affirmed by the time that the court denied in forma pauperis status, nor do we address the relevance of that fact. Coleman-Bey had three effective strikes both when he filed his case and when his in forma pauperis status was denied, and was thus prohibited by
AFFIRMED.
MARTHA CRAIG DAUGHTREY, Circuit Judge, dissenting. This appeal presents an issue that the Sixth Circuit has not addressed previously in a published opinion: whether a cause of action‘s dismissal that still is on appeal nevertheless can constitute a “strike” for purposes of the “three-strikes” provision of the Prison Litigation Reform Act (PLRA),
One of the earliest opinions interpreting the three-strikes provision of section 1915(g) was issued by the Fifth Circuit shortly after the PLRA was enacted. In Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996), the court held that “[a] dismissal should not count against a petitioner [as a strike under the PLRA] until he has exhausted or waived his appeals.” In the ensuing 17 years, all but one of the circuit courts addressing the issue have followed suit, either by explicitly adopting Adepegba‘s conclusion or by indicating that this majority rule presumptively should apply. See, e.g., Ball v. Famiglio, 726 F.3d 448, 465 (3d Cir. 2013); Henslee v. Keller, 681 F.3d 538, 543-44 (4th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1100 (9th Cir. 2011); Smith v. Veterans Admin., 636 F.3d 1306, 1310-11 (10th Cir. 2011); Chavis v. Chappuis,
I find the reasoning that has led the great majority of circuits to conclude that dismissals count as strikes under the PLRA only when those dismissals have become final – i.e., when the plaintiff has exhausted or waived his appellate rights – both more compelling and more fair. Although the Seventh Circuit and, now, my colleagues in this case argue that the majority rule distorts the plain meaning of the PLRA, the Ninth Circuit has pointed out that “[s]ection 1915(g) does not expressly state whether a prior dismissal of ‘an action or appeal’ must be final before it can be considered a ‘strike . . . .‘” Silva, 658 F.3d at 1098. Instead, section 1915(g) states simply that a prisoner who, on “3 or more prior occasions” brought an action or appeal “that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,” cannot be accorded in forma pauperis status “unless the prisoner is under imminent danger of serious physical injury.”
Thus, as the Fourth Circuit has noted, the statute is ambiguous, not only with respect to when dismissals should count as strikes but also with respect to what counts as a “prior occasion.” Henslee, 681 F.3d at 542 (noting that the term “prior occasion” “may refer to a single moment or to a continuing event: to an appeal, independent of the underlying action, or to the continuing claim, inclusive of both the action and its appeal“). Hence, there are as many as three possible readings of what counts as a strike: (1) a suit dismissed under
The overwhelming majority of other circuits have concluded that Congress could not have intended that dismissals would count as strikes immediately, given Congress‘s concern with fostering meritorious prisoner suits and preventing frivolous ones. “It is uncontroversial from the plain language of the statute that Congress intended section 1915(g) only to penalize litigation that is truly frivolous, not to freeze out meritorious claims or ossify district court errors.” Adepegba, 103 F.3d at 388. See also Jones v. Bock, 549 U.S. 199, 204 (2007) (noting that the reforms in the PLRA were “designed to filter out the bad claims and facilitate consideration of the good“). Construing section 1915(g) to require courts to count dismissals as strikes even when pending on appeal could potentially bar the filing of meritorious claims and preserve district court errors by preventing prisoners from bringing claims in federal court while one or more of their first three dismissals were being reversed on appeal. See Adepegba, 103 F.3d at 387-88. See also Thompson, 492 F.3d at 432 (noting that an interpretation of the statute that counted dismissals as strikes even prior to appeal “would, within those narrow set of cases in which the third strike is appealed, effectively eliminate our appellate function,” and concluding that “[h]ad Congress intended such an unusual result, . . . it would have clearly said so“); Silva, 658 F.3d at 1098-99 (recognizing that, because the minority view represents a departure from the usual practice under
Nevertheless, my colleagues in this case suggest that prisoners attempting to appeal a third dismissal for filing an allegedly frivolous complaint would not necessarily suffer the hardships envisioned by the decisions in Jones, Adepegba, and Thompson.
This alternative is far from satisfying. For one thing, it threatens to make the resolution of a Rule 24(a)(5) motion more complex and involved than it is at present. See Thompson, 492 F.3d at 433 (quoting claim in government brief that the Seventh Circuit approach “creat[es] more work than is appropriate for either the courts or the litigants to resolve a request for [in forma pauperis] privileges“). Furthermore, this alternative fails to provide any relief for litigants like Coleman who seek pauper status to litigate an unrelated case rather than to appeal a third dismissal decision. By following the majority‘s lead in this case, the only way we could ensure that Coleman was not precluded erroneously from proceeding in forma pauperis in district court would be to conduct our own merits analysis of the prior dismissal currently pending on appeal before (presumably) a different panel of this court. Obviously, such a proposed solution to the problem is unwieldy, problematic, and creates unnecessary, extra work for the courts.
Because I would hold that dismissals of causes of action do not count as strikes under the PLRA until the prisoner-plaintiffs have exhausted or waived their appeals, I also would decide at precisely what point in the litigation process the finality of any prior dismissals should be assessed. Our sister circuits have differed somewhat in the approaches they have taken to this timing question. The Third Circuit has held that the language of section 1915(g) suggests that a prisoner‘s status under the statute should be assessed as of the date the latest complaint is filed. See Gibbs v. Ryan, 160 F.3d 160, 162 (3d Cir. 1998) (noting that section 1915(g) applies to prisoners who “bring a civil
In light of the relevant statutory language, and given the ease in applying the rule adopted by the majority of other circuits, I would adopt the view that the question whether a prior dismissal is final should be assessed as of the date of the filing of the complaint or notice of appeal. Adopting this timing rule also would reduce the possibility that litigants could seek to manipulate the judicial calendar to advance their own positions. In the present case, however, whether Coleman‘s pauper status should have been assessed as of the date he filed his new, fourth complaint or the date the district court resolved his motion for pauper status in that proceeding is irrelevant. The plaintiff‘s latest cause of action against the correctional-facility defendants was filed in December 2010, well before the district court denied his in forma pauperis request in February 2011 or this court affirmed the dismissal of his prior, third civil-rights complaint in March 2011.
I would hold that the proper interpretation of