Argued: May 8, 2019
Appeals from the United States District Court for the
District of South Carolina, at Charleston. Richard Mark
Gergel, District Judge. (2:15-cv-04958-RMG;
B. McCoy, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina, for Appellant.
Eugene Hardin, Jr., THE MCKAY FIRM, PA, Columbia, South
Carolina, for Appellees.
J. Korzen, Director, Hanna E. Monson, Third-Year Law Student,
Appellate Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF
LAW, Winston-Salem, North Carolina, for Appellant.
R. Settana, Jr., THE MCKAY FIRM, PA, Columbia, South
Carolina, for Appellees.
MOTZ, WYNN, and RICHARDSON, Circuit Judges.
GRIBBON MOTZ, CIRCUIT JUDGE
a federal plaintiff lacking sufficient funds may proceed
in forma pauperis, that is, without prepaying the
filing fees, when filing a complaint or an appeal in federal
court. But under the Prison Litigation Reform Act
("PLRA"), a court may not grant in forma
pauperis status to a prisoner if he "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." 28 U.S.C. § 1915(g) (the
"three-strikes rule"). This case requires us to
decide whether an indigent prisoner may proceed in forma
pauperis on appeal from the order assigning his third
strike. For the reasons that follow, we conclude that he can
and so grant his motions to do so.
the importance of providing equal access to federal courts,
Congress has provided that indigent prisoners may, before a
court rules on the merits of a case, seek to proceed
"without prepayment of fees or security therefor."
28 U.S.C. § 1915(a)(1). Prisoners who do so do not avoid
paying the filing fees entirely. Rather, the statute
"requires that a prisoner (1) pay an initial partial
filing fee based on the funds available in the prisoner's
account; and (2) make monthly payments of '20 percent of
the preceding month's income credited to the
prisoner's account.'" Tolbert v.
Stevenson, 635 F.3d 646, 648 n.1 (4th Cir. 2011)
(quoting 28 U.S.C. § 1915(b)(1)-(2)).
so, Congress has long recognized the potential for abuse in
this system, which reduces the immediate "economic
incentive to refrain from filing frivolous, malicious, or
repetitive lawsuits." Coleman v. Tollefson, 135
S.Ct. 1759, 1762 (2015) (internal quotation marks omitted).
Concluding this was especially true for prisoner suits,
Congress "enacted a variety of reforms designed to
filter out the bad claims and facilitate consideration of the
good" through the Prison Litigation Reform Act of 1996
("PLRA"). Jones v. Bock, 549 U.S. 199, 204
(2007); see also Coleman, 135 S.Ct. at 1762.
"three-strikes rule" is one such reform. It
provides that a prisoner may not bring a civil action or an
appeal in forma pauperis if he has had three prior
actions or appeals dismissed as frivolous, as malicious, or
for failure to state a claim upon which relief may be
granted. 28 U.S.C. § 1915(g). In this case, we must
decide whether an indigent prisoner may proceed in forma
pauperis on appeal from the very order assigning his
Taylor, an indigent state prisoner, filed three pro se civil
rights actions in the District of South Carolina against
various employees of the South Carolina Department of
Corrections and the City of Allendale (collectively,
first action, filed on December 14, 2015, Taylor alleged that
seven employees of the South Carolina Department of
Corrections and the City of Allendale had denied him access
to the prison's mailroom services, interfering with his
ability to petition the courts. In the second action, filed
against a similar group of corrections officials on June 20,
2016, Taylor alleged that the officials violated his rights
by transferring him to a new unit. He also made general
allegations of "corruption, drug smuggling, [and] high
rates of violence." Taylor filed a third action on
September 8, 2016, again alleging that corrections officials
had improperly transferred him to another unit and
confiscated his personal belongings. In a set of three orders
issued on the same day, the district court dismissed each
complaint for failure to state a claim and so assigned Taylor
three "strikes" under § 1915(g).
timely filed a pro se notice of appeal in each case, again on
the same day, and moved in each to proceed in forma
pauperis, which Appellees opposed. We consolidated the
three cases, provisionally granted Taylor in forma
pauperis status, and appointed counsel for him to
address the following issue: "Whether trial court
dismissal only qualifies as a strike for PLRA purposes if it
occurred in a different lawsuit."
considered the exact issue presented here in Henslee v.
Keller, 681 F.3d 538 (4th Cir. 2012). There, as here, a
state prisoner appealed the district court's dismissal of
his third qualifying complaint for failure to state a claim
and moved to proceed in forma pauperis on appeal.
Id. at 539. Adopting the view then widely held by
other circuits, we concluded that the prisoner could so
proceed because "counting the district court's
dismissal as the third strike under [§ 1915(g)] would
effectively insulate the dismissal from appellate
review." Id. at 539, 541-42.
reach this conclusion, we first found the term
"occasion" in § 1915(g) to be ambiguous.
Id. at 542. We then turned to the statute's
history and purpose, which "indicate[d] that
Congress's intention was to limit frivolous prisoner
litigation without preventing meritorious claims from being
heard." Id. at 543. Against this backdrop, we
observed that denying in forma pauperis status in
these circumstances would "freeze out meritorious claims
or ossify district court errors by effectively preventing the
appellate courts from performing their function."
Id. (internal quotation marks omitted). Because the
statute's history and purpose evidenced no intent to do
so, we held that "the dismissal of the underlying
claim" did not "act as a strike to preclude [in
forma pauperis] status on its own appeal."
years after we decided Henslee, the Supreme Court
considered a related but factually distinct issue: whether a
prisoner whose third strike was pending on appeal could file
"several additional actions" in forma
pauperis. Coleman, 135 S.Ct. at 1761 (emphasis
added). In holding that a prisoner could not do so, the Court
focused on when a dismissal becomes final under
§ 1915(g). Id. at 1763-64. The Coleman
Court reasoned that because the term "dismiss . . . does
not normally include subsequent appellate activity," a
district court's dismissal of an action immediately
counts as a strike under § 1915(g) as to all later-filed
additional actions. Id. at 1763.
this result, the prisoner in Coleman had argued,
based in part on a portion of our rationale in
Henslee, that the phrase "prior occasions"
created ambiguity as to the meaning of when an action or
appeal "was dismissed." Id. The Supreme
Court rejected this argument - and thus some of our reasoning
in Henslee - and held that nothing in the phrase
"'prior occasions' . . . transform[s] a
dismissal into a dismissal-plus-appellate-review."
Id. (quoting 28 U.S.C. § 1915(g)).
its rejection of the prisoner's claim in
Coleman, the Supreme Court found it unnecessary to
decide the question we faced in Henslee and we face
again today: that is, may a prisoner proceed in forma
pauperis on "appeal from the trial court's
dismissal of his third complaint"? Id. at 1765.
The United States, appearing as amicus curiae for the prison
officials, offered an answer of its own: it argued that
§ 1915(g) was best read to afford a prisoner in
forma pauperis status on appeal from the third
qualifying dismissal. See Brief for the United
States as Amicus Curiae Supporting Respondents at 25-27,
Coleman, 135 S.Ct. 1759 (No. 13-1333), 2015 WL
272362 [hereinafter "Brief for the United States as
Amicus Curiae"]. After explaining the Solicitor
General's position, the Supreme Court expressly left for
another day resolution of whether that position was correct.
Coleman, 135 S.Ct. at 1765.
consider again the issue resolved in Henslee but
left open by the Court in Coleman. Taylor maintains
that we should reach the same conclusion here. While
conceding that the Coleman Court left this question
"unresolved," Appellees nonetheless maintain that
the Coleman Court's rationale
"supports" a different result.
review de novo questions of statutory interpretation,
including application of the three-strikes ...