United States: For It's One, Two, Three Strikes and Prisoner Suits (Might Be) Out

This is the third and final post in a series examining the effect of inmate litigation on federal dockets. (See the first two articles here and here.)

The Prison Litigation Reform Act (PLRA), enacted by an overwhelmingly bipartisan vote to respond to the prisoner "litigation explosion,"1 has reduced the number of prisoner suits.   But more than twenty years later, federal dockets remain loaded with inmate litigation. Forty percent of the Fifth Circuit's docket is occupied by prisoner suits – about ninety percent of which are unsuccessful. My last article explored an under-utilized tool to deter frivolous prisoner claims: the Spears hearing; another such tool is the "Three Strikes Rule," codified at 28 U.S.C. § 1915.

The Three Strikes Rule prohibits an inmate from filing suit in forma pauperis after that inmate has three claims dismissed as "frivolous, malicious, or [failing] to state a claim upon which relief may be granted," with an exception if the inmate is "under imminent danger of serious physical injury." So a prisoner may still file suit after having three dismissed as frivolous, malicious, or failing to state a claim – that is, three "strikes" – but to do so, the prisoner must pay the full filing fee. In the U.S. District Courts for the Northern and Southern Districts of Mississippi, that fee is about $400.

Still, many prisoners who have had at least three suits dismissed for the reasons enumerated in the Three Strikes Rule – are still filing, and filing a lot, in forma pauperis. Here are three such prisoners:

Gregory Konrath (as of January 18, 2017)

  • 60 cases filed in 2016 alone in the Northern District of Indiana
  • 35 additional cases filed in 9 other federal district courts
  • 12 suits dismissed as frivolous, malicious, or for failure to state a claim

"  Deric Lavelle May2 (as of July 15, 2015)

  • 7 actions dismissed as frivolous, malicious, or for failure to state a claim in the Southern District of Alabama (all dismissals affirmed by the11th Circuit Court of Appeals)
  • 10 additional actions filed in the Northern District of Alabama, 5 of which were dismissed as frivolous, malicious, or for failure to state a claim

Allen Kelly (as of February 3, 2015)

  • 6 lawsuits dismissed as "frivolous" and 2 additional lawsuits "dismissed pursuant to the Three Strikes Rule" in the Middle District of Pennsylvania

Clearly, there must be unintentional loopholes (or maybe intentional carve-outs?) in the Three Strikes Rule that prevent the Rule from maximizing its effectiveness to prohibit multiple, frivolous filings from recreational inmate litigators. Holdings from various federal courts demonstrate these loopholes:

Congress may have intended some or all of these results, or Congress may not have considered them at all. Regardless, such exceptions hinder the Three Strikes Rule from being fully utilized to deter frivolous prisoner lawsuits. Thus, amendments may be in order to clarify the Act and settle judicial debate.4

Another impediment to the effectiveness of the Three Strikes Rule is the language of judicial opinions dismissing prisoner suits. That is, a prisoner may have a claim dismissed for one of the reasons enumerated in the Three Strikes Rule, but the opinion may not state that the dismissal is a "strike" – and thus, no "strike" is incurred. This issue is illustrated in the Allen Kelly case, listed above, delineating between cases "dismissed as frivolous" versus cases "dismissed pursuant to the three strikes rule." To prevent this issue, counsel defending against such claims may move the court to expressly impose a "strike" pursuant to the Three Strikes Rule.

The Three Strikes Rule was intended to deter prolific-litigator prisoners from filing frivolous actions by taking away the privilege to file in forma pauperis if those prisoners abused that privilege. However, if the Three Strikes Rule is to be truly effective to reduce repetitive, unwarranted inmate suits, the issues highlighted here should be addressed – either by Congress, by the courts, or by counsel defending against prisoner suits.


1 See 141 Cong. Rec. S14611-01 at *S14626.

2 See May v. Hetzel, No. 15-0230-KD-M, 2015 WL 4389936 (S.D. Ala. July 15, 2015).

3 Despite this holding as to "strikes," the D.C. Circuit Court of Appeals did exercise its discretion to deny in forma pauperis status to this plaintiff prisoner since he "abuse[d] the privilege" to file with such status. The court found the plaintiff was a "prolific filer" with eight appeals in a four-year span before the D.C. Circuit and at least fifteen additional cases pending in other courts – many of which sought the same relief and all but one of which was dismissed on summary judgment, a motion to dismiss, or for failure to respond. See Butler v. Dep't of Justice, 492 F.3d 440, 446-47 (D.C. 2007), available at https://casetext.com/case/butler-v-dept-of-justice.

4 Though Congress has not addressed any of these "strike" issues, the U.S. Supreme Court (in 2015's Coleman v Tollefson) settled a circuit split over a Three Strikes Rule loophole: whether a dismissed prisoner suit is a "strike" if dismissal of that suit is still under appeal when a new case is filed. In a unanimous opinion, the Supreme Court sided with the circuit minority in holding that a dismissed in forma pauperis prisoner suit is a "strike," even while an appeal of that dismissed decision is pending. The Court held that the statute "refers to whether an action or appeal 'was dismissed'" – and that the term 'dismissed' is not "a sequence of events involving multiple courts." The Court refrained from answering the related question of whether a prisoner would also be prohibited from filing in forma pauperis in the appeal of a third-strike dismissal, in addition to being prohibited from filing an altogether new suit with such status. The Supreme Court blog predicts that "it is difficult to see how the Court's statutory analysis [in Coleman] wouldn't apply to those facts, as well."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.