A majority of state attorneys general have asked the nation’s top court to shore up rules preventing prisoners from filing too many lawsuits.
Illinois’ top lawyer is among a group of 32 attorneys general asking the U.S. Supreme Court to affirm that a “three-strike” rule applies to certain filings by indigent prisoners even if they were dismissed without prejudice.
The high court justices will hear arguments later this month on whether such a dismissal under a 1996 federal law that allows prisoners to file at least three actions without paying fees counts against them.
Section 1915(g) of the Prison Litigation Reform Act states that prisoners generally can’t file claims in forma pauperis if three or more of their previous actions under that statute were deemed frivolous, malicious or failed to state claims.
The case stems from a suit filed by a prisoner in Colorado, Arthur Lomax, who claimed he was wrongfully expelled from a sex offender treatment program. His claims were dismissed when a judge noted three of his previous suits had been dismissed, but Lomax claimed two of those shouldn’t qualify as strikes because they weren’t dismissed with prejudice.
Illinois Attorney General Kwame Y. Raoul signed on to arguments filed late last month by most other state attorneys general, stating such dismissals should qualify. The state attorneys general noted they’re the ones who bear the brunt of prisoner litigation.
“Specifically, the [s]tates routinely must defend vast numbers of suits filed by prisoners who use the in forma pauperis statute, 28 U.S.C. Section 1915, to inundate the courts with litigation without prepaying filing fees, which in other contexts serve as important economic deterrence to filing meritless lawsuits,” they wrote in a 27-page argument.
The state lawyers wrote that the justices should affirm the 10th U.S. Circuit Court of Appeals decision that Lomax could not proceed in forma pauperis.
Their brief states that in the mid-1990s, when prisoner suits challenging conditions of their incarceration and the actions of prison officials were at their peak, they represented over a quarter of all civil suits initiated in federal court and states defended in about 95% of those cases.
After the law went into effect, the number of such lawsuits went from roughly 39,000 in 1995 to about 26,000 in 1997, the states’ brief notes. The number of prison lawsuits is still “substantial,” the states added and filings began to creep upward in the middle of the last decade.
But ruling in favor of Lomax in this case would “dilute” the three-strike rule and completely reverse the gains made after the law was enacted, the states argued.
“That sort of enfeeblement of the three-strike rule would substantially increase the burden on [s]tates by frustrating the effectiveness of an important tool for reducing the number of meritless prisoner suits,” they wrote.
A spokeswoman for Raoul’s office could not be reached for comment.
For their part, Lomax and his attorneys argue the law makes the most sense if it’s read as applying to suits without merit.
“An order dismissing an action ‘without prejudice’ is ‘the opposite’ of a merits adjudication; the order does not reflect any judgment about whether the action may ultimately succeed,” Lomax argued in his brief before the court.
“It would be deeply at odds with the text, structure and intent of the PLRA to penalize indigent prisoner litigants — and restrict their access to the federal courts — for filing pro se actions with the sort of temporary and curable procedural flaws that result in without-prejudice dismissal orders.”
The case is Arthur James Lomax v. Christina Ortiz-Marquez, et al., No. 18-8369.