Coleman v. Tollefson

(Slip Opinion) OCTOBER TERM, 2014 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

COLEMAN, AKA COLEMAN-BEY v. TOLLEFSON ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 13–1333. Argued February 23, 2015—Decided May 18, 2015*

Ordinarily, a federal litigant who is too poor to pay court fees may pro-

ceed in forma pauperis. This means that the litigant may commence

a civil action without prepaying fees or paying certain expenses. See

28 U. S. C. §1915(a). But a special “three strikes” provision prevents

a court from affording in forma pauperis status to a prisoner who

“has, on 3 or more prior occasions, while incarcerated . . . , 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 up-

on which relief may be granted.” §1915(g).

Petitioner Coleman, a state prisoner, filed three federal lawsuits

that were dismissed on grounds enumerated in §1915(g). While the

third dismissal was pending on appeal, he filed four additional feder-

al lawsuits, moving to proceed in forma pauperis in each. The Dis-

trict Court refused to permit him to proceed in forma pauperis in any

of those lawsuits, holding that a prior dismissal is a strike under

§1915(g) even if it is pending on appeal. The Sixth Circuit agreed

with the District Court.

Held: A prior dismissal on one of §1915(g)’s statutorily enumerated

grounds counts as a strike, even if the dismissal is the subject of an

ongoing appeal. Pp. 4–9.

(a) Coleman suggests that that a dismissal should count as a

strike only once appellate review is complete. But the word “dis-

missed” does not normally include subsequent appellate activity.

——————

* Together with Coleman, aka Coleman-Bey v. Bowerman et al.;

Coleman, aka Coleman-Bey v. Dykehouse et al., and Coleman, aka

Coleman-Bey v. Vroman et al. (see this Court’s Rule 12.4), also on certi-

orari to the same court.

2 COLEMAN v. TOLLEFSON

Syllabus

See, e.g., Heintz v. Jenkins, 514 U. S. 291, 294. And §1915 itself de-

scribes dismissal as an action taken by a single court, not as a se-

quence of events involving multiple courts. See §1915(e). Coleman

further contends that the phrase “prior occasions” creates ambiguity.

But nothing about that phrase transforms a dismissal into a dismis-

sal-plus-appellate-review. In the context of §1915(g), a “prior occa-

sion” merely means a previous instance in which a “prisoner has . . .

brought an action or appeal . . . that was dismissed on” statutorily

enumerated grounds.

A literal reading of the “three strikes” provision is consistent with

the statute’s treatment of the trial and appellate states of litigation

as distinct. See §§1915(a)(2), (a)(3), (b)(1), (e)(2), (g). It is also sup-

ported by the way in which the law ordinarily treats trial court

judgments, i.e., a judgment normally takes effect despite a pending

appeal, see Fed. Rule Civ. Proc. 62; Fed. Rule App. Proc. 8(a), and its

preclusive effect is generally immediate, notwithstanding any appeal,

see Clay v. United States, 537 U. S. 522, 527.

Finally, the statute’s purpose favors this Court’s interpretation.

The “three strikes” provision was “designed to filter out the bad

claims and facilitate consideration of the good,” Jones v. Bock, 549

U. S. 199, 204. To refuse to count a prior dismissal because of a

pending appeal would produce a leaky filter, because a prisoner could

file many new lawsuits before reaching the end of the often lengthy

appellate process. By contrast, the Court perceives no great risk that

an erroneous trial court dismissal might wrongly deprive a prisoner

of in forma pauperis status in a subsequent lawsuit. Pp. 4–8.

(b) Coleman also argues that if the dismissal of a third complaint

counts as a third strike, a litigant will lose the ability to appeal in

forma pauperis from that strike itself. He believes this is a result

that Congress could not possibly have intended. Because Coleman is

not appealing from a third-strike trial-court dismissal here, the Court

declines to address that question. Pp. 8–9.

733 F. 3d 175, affirmed.

BREYER, J., delivered the opinion for a unanimous Court.

Cite as: 575 U. S. ____ (2015) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 13–1333

_________________

ANDRE LEE COLEMAN, AKA ANDRE LEE COLEMAN­

BEY, PETITIONER v. TODD TOLLEFSON, ET AL.

ANDRE LEE COLEMAN, AKA ANDRE LEE COLEMAN­

BEY, PETITIONER v. BERTINA BOWERMAN, ET AL.

ANDRE LEE COLEMAN, AKA ANDRE LEE COLEMAN­

BEY, PETITIONER v. STEVEN DYKEHOUSE, ET AL.

ANDRE LEE COLEMAN, AKA ANDRE LEE COLEMAN­

BEY, PETITIONER v. AARON J. VROMAN, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[May 18, 2015]

JUSTICE BREYER delivered the opinion of the Court.

Ordinarily, a federal litigant who is too poor to pay court

fees may proceed in forma pauperis. This means that the

litigant may commence a civil action without prepaying

fees or paying certain expenses. See 28 U. S. C. §1915.

But a special “three strikes” provision prevents a court

from affording in forma pauperis status where the litigant

is a prisoner and he or she “has, on 3 or more prior occa­

sions, while incarcerated . . . , 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.” §1915(g).

Prior to this litigation, a Federal District Court had

dismissed on those grounds three actions brought by a

2 COLEMAN v. TOLLEFSON

Opinion of the Court

state prisoner. While the third dismissal was pending on

appeal, the prisoner sought to bring several additional

actions in the federal courts. The question before us is

whether the prisoner may litigate his new actions in forma

pauperis. Where an appeals court has not yet decided

whether a prior dismissal is legally proper, should courts

count, or should they ignore, that dismissal when calcu­

lating how many qualifying dismissals the litigant has

suffered?

We conclude that the courts must count the dismissal

even though it remains pending on appeal. The litigant

here has accumulated three prior dismissals on statutorily

enumerated grounds. Consequently, a court may not

afford him in forma pauperis status with respect to his

additional civil actions.

I

A

Congress first enacted an in forma pauperis statute in

1892. See Act of July 20, ch. 209, 27 Stat. 252. Congress

recognized that “no citizen sh[ould] be denied an oppor­

tunity to commence, prosecute, or defend an action, civil or

criminal, in any court of the United States, solely because

his poverty makes it impossible for him to pay or secure

the costs.” Adkins v. E. I. DuPont de Nemours & Co., 335

U. S. 331, 342 (1948) (internal quotation marks omitted).

It therefore permitted a citizen to “commence and prose­

cute to conclusion any such . . . action without being re­

quired to prepay fees or costs, or give security therefor

before or after bringing suit.” §1, 27 Stat. 252. The cur­

rent statute permits an individual to litigate a federal

action in forma pauperis if the individual files an affidavit

stating, among other things, that he or she is unable to

prepay fees “or give security therefor.” 28 U. S. C.

§1915(a)(1).

Even in 1892, “Congress recognized . . . that a litigant

Cite as: 575 U. S. ____ (2015) 3

Opinion of the Court

whose filing fees and court costs are assumed by the pub­

lic, unlike a paying litigant, lacks an economic incentive to

refrain from filing frivolous, malicious, or repetitive law­

suits.” Neitzke v. Williams, 490 U. S. 319, 324 (1989).

And as the years passed, Congress came to see that pris­

oner suits in particular represented a disproportionate

share of federal filings. Jones v. Bock, 549 U. S. 199, 202–

203 (2007). It responded by “enact[ing] a variety of re­

forms designed to filter out the bad claims [filed by prison­

ers] and facilitate consideration of the good.” Id., at 204.

Among those reforms was the “three strikes” rule here at

issue. The rule, which applies to in forma pauperis status,

reads in its entirety as follows:

“In no event shall a prisoner bring a civil action or ap­

peal a judgment in a civil action or proceeding [in

forma pauperis] if the prisoner has, on 3 or more prior

occasions, while incarcerated or detained in any facil­

ity, 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.”

§1915(g).

B

The petitioner, André Lee Coleman, is incarcerated at

the Baraga Correctional Facility in Michigan. By 2010,

three federal lawsuits filed by Coleman during his incar­

ceration had been dismissed as frivolous (or on other

grounds enumerated in §1915(g)). Nonetheless, when

Coleman filed four new federal lawsuits between April

2010 and January 2011, he moved to proceed in forma

pauperis in each. He denied that his third dismissed

lawsuit counted as a strike under §1915(g). That is be­

cause he had appealed the dismissal, and the appeals

court had not yet ruled. Thus, in Coleman’s view, he had

4 COLEMAN v. TOLLEFSON

Opinion of the Court

fewer than three qualifying dismissals, and was eligible

for in forma pauperis status under the statute.

The District Court rejected Coleman’s argument. It held

that “a dismissal counts as a strike even if it is pending on

appeal at the time that the plaintiff files his new action.”

No. 10–cv–337 (WD Mich., Apr. 12, 2011), App. to Pet. for

Cert. 21a, 24a. It thus refused to permit Coleman to

proceed in forma pauperis in any of his four suits.

On appeal, a divided panel of the Sixth Circuit agreed

with the District Court. 733 F. 3d 175 (2013). It resolved

the four cases using slightly different procedures. In one

of the four cases, the Sixth Circuit affirmed the District

Court’s judgment. In the remaining three cases, it denied

Coleman’s request to proceed in forma pauperis on appeal.

It subsequently dismissed the three cases for want of

prosecution after Coleman failed to pay the appellate

filing fees.

In contrast to the Sixth Circuit, the vast majority of the

other Courts of Appeals have held that a prior dismissal

on a statutorily enumerated ground does not count as a

strike while an appeal of that dismissal remains pending.

See Henslee v. Keller, 681 F. 3d 538, 541 (CA4 2012) (list­

ing, and joining, courts that have adopted the majority

view). In light of the division of opinion among the Cir­

cuits, we granted Coleman’s petition for certiorari.

II

A

In our view, the Sixth Circuit majority correctly applied

§1915(g). A prior dismissal on a statutorily enumerated

ground counts as a strike even if the dismissal is the

subject of an appeal. That, after all, is what the statute

literally says. The “three strikes” provision applies where

a prisoner “has, on 3 or more prior occasions . . . brought

an action or appeal . . . that was dismissed on” certain

grounds. §1915(g) (emphasis added). Coleman believes

Cite as: 575 U. S. ____ (2015) 5

Opinion of the Court

that we should read the statute as if it referred to an

“affirmed dismissal,” as if it considered a trial court dis­

missal to be provisional, or as if it meant that a dismissal

falls within the statute’s scope only when the litigant has

no further chance to secure a reversal. But the statute

itself says none of these things.

Instead, the statute refers to whether an action or ap­

peal “was dismissed.” §1915(g). The linguistic term “dis­

miss,” taken alone, does not normally include subsequent

appellate activity. See, e.g., Heintz v. Jenkins, 514 U. S.

291, 294 (1995) (“[T]he District Court dismissed [the]

lawsuit for failure to state a claim. . . . However, the Court

of Appeals for the Seventh Circuit reversed the District

Court’s judgment”); Gray v. Netherland, 518 U. S. 152, 158

(1996) (“The Suffolk Circuit Court dismissed petitioner’s

state petition for a writ of habeas corpus. The Virginia

Supreme Court affirmed the dismissal”). Indeed, §1915

itself describes dismissal as an action taken by a single

court, not as a sequence of events involving multiple

courts. See §1915(e)(2) (“[T]he court shall dismiss the case

at any time if the court determines that—(A) the allega­

tion of poverty is untrue; or (B) the action or appeal—(i) is

frivolous or malicious; [or] (ii) fails to state a claim on

which relief may be granted” (emphasis added)).

Coleman insists that §1915(g) is not so clear. Even if

the term “dismissed” is unambiguous, contends Coleman,

the phrase “prior occasions” creates ambiguity. Coleman

observes that the phrase “ ‘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.’ ” Brief for Petitioner 17

(quoting Henslee, supra, at 542). Coleman believes that a

“prior occasion” in the context of §1915(g) may therefore

include both a dismissal on an enumerated ground and

any subsequent appeal.

We find it difficult to agree. Linguistically speaking, we

6 COLEMAN v. TOLLEFSON

Opinion of the Court

see nothing about the phrase “prior occasions” that would

transform a dismissal into a dismissal-plus-appellate­

review. An “occasion” is “a particular occurrence,” a “hap­

pening,” or an “incident.” Webster’s Third New Interna­

tional Dictionary 1560 (3d ed. 1993). And the statute

provides the content of that occurrence, happening, or

incident: It is an instance in which a “prisoner has . . .

brought an action or appeal in a court of the United States

that was dismissed on” statutorily enumerated grounds.

§1915(g). Under the plain language of the statute, when

Coleman filed the suits at issue here, he had already

experienced three such “prior occasions.”

Our literal reading of the phrases “prior occasions” and

“was dismissed” is consistent with the statute’s discussion

of actions and appeals. The in forma pauperis statute

repeatedly treats the trial and appellate stages of litiga­

tion as distinct. See §§1915(a)(2), (a)(3), (b)(1), (e)(2), (g).

Related provisions reflect a congressional focus upon trial

court dismissal as an important separate element of the

statutory scheme. See §1915A (requiring a district court

to screen certain prisoner complaints “as soon as practica­

ble” and to dismiss any portion of the complaint that “is

frivolous, malicious, or fails to state a claim upon which

relief may be granted”); 42 U. S. C. §1997e(c)(1) (similar).

We have found nothing in these provisions indicating that

Congress considered a trial court dismissal and an appel­

late court decision as if they were a single entity—or that

Congress intended the former to take effect only when

affirmed by the latter.

Our literal reading of the “three strikes” provision also

is supported by the way in which the law ordinarily treats

trial court judgments. Unless a court issues a stay, a trial

court’s judgment (say, dismissing a case) normally takes

effect despite a pending appeal. See Fed. Rule Civ. Proc.

62; Fed. Rule App. Proc. 8(a). And a judgment’s preclusive

effect is generally immediate, notwithstanding any appeal.

Cite as: 575 U. S. ____ (2015) 7

Opinion of the Court

See Clay v. United States, 537 U. S. 522, 527 (2003) (“Typ­

ically, a federal judgment becomes final for . . . claim

preclusion purposes when the district court disassociates

itself from the case, leaving nothing to be done at the court

of first instance save execution of the judgment”). The

ordinary rules of civil procedure thus provide additional

support for our interpretation of the statute. See Jones,

549 U. S., at 211–216 (applying the ordinary rules of civil

procedure where the procedural requirements for prison

litigation do not call for an alternative).

Finally, the statute’s purpose favors our interpretation.

The “three strikes” provision was “designed to filter out

the bad claims and facilitate consideration of the good.”

Id., at 204. To refuse to count a prior dismissal because of

a pending appeal would produce a leaky filter. Appeals

take time. During that time, a prisoner could file many

lawsuits, including additional lawsuits that are frivolous,

malicious, or fail to state a claim upon which relief may be

granted. Indeed, Coleman filed these four cases after he

suffered his third qualifying dismissal, in October 2009,

and before the affirmance of that order, in March 2011.

We recognize that our interpretation of the statute may

create a different risk: An erroneous trial court dismissal

might wrongly deprive a prisoner of in forma pauperis

status with respect to lawsuits filed after a dismissal but

before its reversal on appeal. But that risk does not seem

great. For one thing, the Solicitor General informs us that

he has been able to identify only two instances in which a

Court of Appeals has reversed a District Court’s issuance

of a third strike. Brief for United States as Amicus Curiae

22, n. 5. For another, where a court of appeals reverses a

third strike, in some instances the prisoner will be able to

refile his or her lawsuit after the reversal, seeking in

forma pauperis status at that time. Further, if the statute

of limitations governing that lawsuit has run out before

the court of appeals reverses the third strike, the Solicitor

8 COLEMAN v. TOLLEFSON

Opinion of the Court

General assures us that prisoners will find relief in Federal

Rule of Civil Procedure 60(b). According to the Solicitor

General, a prisoner may move to reopen his or her interim

lawsuits (reinstating the cases as of the dates originally

filed) and may then seek in forma pauperis status anew.

In any event, we believe our interpretation of the statute

hews more closely to its meaning and objective than does

Coleman’s alternative.

B

Coleman makes an additional argument. He poses a

hypothetical: What if this case had involved an attempt to

appeal from the trial court’s dismissal of his third com­

plaint instead of an attempt to file several additional

complaints? If the dismissal were counted as his third

strike, Coleman asserts, he would lose the ability to ap­

peal in forma pauperis from that strike itself. He believes

that this result, which potentially could deprive him of

appellate review, would be unfair. He further believes

that it would be such a departure from the federal courts’

normal appellate practice that Congress could not possibly

have intended it.

The Solicitor General, while subscribing to our interpre­

tation of the statute, supports Coleman on this point. The

Solicitor General says that we can and should read the

statute to afford a prisoner in forma pauperis status with

respect to an appeal from a third qualifying dismissal—

even if it does not allow a prisoner to file a fourth case

during that time. He believes that the statute, in refer­

ring to dismissals “on 3 or more prior occasions,” 28

U. S. C. §1915(g) (emphasis added), means that a trial

court dismissal qualifies as a strike only if it occurred in a

prior, different, lawsuit.

We need not, and do not, now decide whether the Solici­

tor General’s interpretation (or some other interpretation

with the same result) is correct. That is because Coleman

Cite as: 575 U. S. ____ (2015) 9

Opinion of the Court

is not here appealing from a third-strike trial-court dis­

missal. He is appealing from the denial of in forma pau-

peris status with respect to several separate suits filed

after the trial court dismissed his earlier third-strike suit.

With respect to those suits, the earlier dismissals certainly

took place on “prior occasions.” If and when the situation

that Coleman hypothesizes does arise, the courts can

consider the problem in context.

* * *

For the reasons stated, we hold that a prisoner who has

accumulated three prior qualifying dismissals under

§1915(g) may not file an additional suit in forma pauperis

while his appeal of one such dismissal is pending. The

judgments of the Court of Appeals are

Affirmed.