Amicus Curiae Brief — Jason Parker, Petitioner v. Montgomery County Correctional Facility, et al.

No. 17-779

IN THE

Supreme Court of the United States

_________

JASON PARKER,

Petitioner,

v.

MONTGOMERY COUNTY CORRECTIONAL

FACILITY/BUSINESS OFFICE MANAGER, ET AL.,

Respondents.

________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

________

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

________

JEFFREY T. GREEN

CO-CHAIR, NATIONAL

ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS AMICUS

COMMITTEE

1660 L Street, N.W.

Washington, D.C. 20036

(202) 872-8600

CLIFFORD W. BERLOW

Counsel of Record

NATHANIEL K.S. WACKMAN

EDWARD P. VRTIS

JENNER & BLOCK LLP

353 N. Clark Street

Chicago, IL 60654

(312) 840-7366

cberlow@jenner.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................... iii

INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF THE ARGUMENT ............................... 2

ARGUMENT ....................................................................... 3

I. This Case Presents An Important And

Recurring Question Regarding The Proper

Interpretation Of 28 U.S.C. §1915(g) ......................... 3

A. Review Is Warranted Because The Vast

Majority Of The Nation’s Prisoners

Depend On The Federal In Forma

Pauperis Statute To Access The Courts ............. 4

B. Review Is Warranted Because The Third

Circuit’s Decision Cuts Off Access To

Appellate Review Without A Clear

Directive From Congress ....................................... 6

C. Review Is Warranted Because The Third

Circuit’s

Decision

Raises

New

Constitutional Difficulties ...................................... 9

II. The Court Should Resolve The Question

Presented Now And In This Case ............................ 10

A. A Substantial Portion Of The Nation’s

Prisoners Already Are Impacted By The

Existing Split Of Authority ................................. 10

ii

B. The Third Circuit’s Resolution Of The

Question

Presented

Will

Deprive

Prisoners With Meritorious Claims Of

Meaningful Access To The Courts ...................... 12

1. Religious Freedom Cases............................... 13

2. Free Speech Cases .......................................... 14

3. Eighth Amendment And Due Process

Cases.................................................................. 15

CONCLUSION ................................................................. 17

iii

TABLE OF AUTHORITIES

CASES

Adepegba v. Hammons,

103 F.3d 383 (5th Cir. 1996)........................................ 12

Brown v. Plata,

563 U.S. 493 (2011)..................................................... 4, 5

Bryant v. Brin,

621 F. App’x 859 (7th Cir. 2015) ................................ 11

Coleman v. Tollefson,

135 S. Ct. 1759 (2015) ................................................ 3, 8

Demore v. Kim,

538 U.S. 510 (2003)......................................................... 7

Dominguez v. Moore,

149 F. App’x 281 (5th Cir. 2005) (per

curiam) .................................................................... 15, 16

Griffin v. Illinois,

351 U.S. 12 (1956)....................................................... 7, 9

Holt v. Hobbs,

135 S. Ct. 853 (2015) .................................................... 12

Holt v. Hobbs,

No. 5:11-cv-00164-BSM-JJV, 2012 WL

994481 (E.D. Ark. Jan. 27, 2012),

report and recommendation adopted,

2012 WL 993403 (E.D. Ark. Mar. 23,

2012)..........................................................................12-13

iv

Jones v. Bock,

549 U.S. 199 (2007)................................................. 3, 5, 6

Neitzke v. Williams,

490 U.S. 319 (1989)....................................................... 10

Parker v. Dugger,

498 U.S. 308 (1991)......................................................... 7

Parsons v. Bedford,

28 U.S. 433 (1830)......................................................... 10

Richey v. Dahne,

807 F.3d 1202 (9th Cir. 2015).............................. 8, 9, 14

Robledo v. Leal,

531 F. App’x 479 (5th Cir. 2013) (per

curiam) .......................................................................... 14

Rowland v. California Men’s Colony,

Unit II Men’s Advisory Council,

506 U.S. 194 (1993)......................................................... 5

Smith v. Bennett,

365 U.S. 708 (1961)......................................................... 9

Thomas v. Holder,

750 F.3d 899 (D.C. Cir. 2014) ................................. 9, 10

Thompson v. DEA,

492 F.3d 428 (D.C. Cir. 2007) ....................................... 8

United States v. E. I. du Pont de

Nemours & Co.,

366 U.S. 316 (1961)......................................................... 7

v

Wagner v. Campuzano,

562 F. App’x 255 (5th Cir. 2014) (per

curiam) .................................................................... 13, 14

Wagner v. Campuzano,

No. 1:12-cv-205-C ECF, 2013 WL

4851618 (N.D. Tex. Sept. 11, 2013) ............................ 13

Walker v. Bertrand,

40 F. App’x 988 (7th Cir. 2002) .................................. 14

Ward v. Fisher,

616 F. App’x 680 (5th Cir. 2015) (per

curiam) .......................................................................... 15

Williams v. Wilkinson,

645 F. App’x 692 (10th Cir. 2016) .............................. 13

Williams v. Wilkinson,

No. CIV 13-206-RAW-SPS, 2015 WL

1268270 (E.D. Okla. Mar. 19, 2015) ........................... 13

Wolff v. McDonnell,

418 U.S. 539 (1974)......................................................... 9

Womble v. Harvanek,

No. 17-7023, 2017 WL 6333936 (10th

Cir. Dec. 12, 2017) (unpublished) ............................... 15

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014)........................................ 13

STATUTES AND RULES

28 U.S.C. § 1291 ................................................................... 7

vi

28 U.S.C. § 1915 ................................................................... 5

28 U.S.C. § 1915(g) .................................................... 2, 5, 16

Sup. Ct. R. 37........................................................................ 1

OTHER AUTHORITIES

141 Cong. Rec. S7526 (daily ed. May 25,

1995)............................................................................. 6, 8

E. Ann Carson & Elizabeth Anderson,

Bureau of Justice Statistics, U.S.

Department of Justice, NCJ 250229,

Bulletin, Prisoners in 2015 (2016) ............................... 4

Federal Judicial Center, Federal Court

Cases: Integrated Database,

https://www.fjc.gov/research/idb/inter

active/IDB-civil-since-1988 (last

visited Dec. 17, 2017) ............................................... 6, 11

Danielle Kaeble & Lauren Glaze, U.S.

Department of Justice, Bulletin,

Correctional Populations in the

United States, 2015 (2016),

https://www.bjs.gov/

content/pub/pdf/cpus15.pdf .................................... 4, 11

Antonin Scalia, The Rule of Law as a Law

of Rules, 56 U. Chi. L. Rev. 1175

(1989) ............................................................................... 7

vii

The Sentencing Project, Fact Sheet:

Trends in U.S. Corrections (June

2017)................................................................................. 4

U.S. Courts, Table B-19, U.S. Courts of

Appeals—Pro Se Cases Commenced,

by Source, During the 12-Month

Periods Ending September 30, 2013

and 2014 (2014), http://www.uscourts.

gov/sites/ default/files/statistics

_import_dir/ B19Sep14.pdf .......................................... 5

INTEREST OF THE AMICUS CURIAE

1

The National Association of Criminal Defense

Lawyers (“NACDL”) is a nonprofit, voluntary bar

association that works on behalf of criminal defense

attorneys to ensure justice and due process for those

accused of a crime or misconduct.

NACDL was founded in 1958. It has a nationwide

membership of many thousands of direct members and

up to 40,000 with affiliates. NACDL’s members include

private criminal defense lawyers, public defenders,

military defense counsel, law professors, and judges.

NACDL is the only nationwide professional bar

association for public defenders and private criminal

defense lawyers. NACDL is dedicated to advancing the

proper, efficient, and just administration of justice.

NACDL files numerous amicus briefs each year in

the U.S. Supreme Court and other federal and state

courts, seeking to provide amicus assistance in cases

that present issues of broad importance to criminal

defendants, criminal defense lawyers, and the criminal

justice system as a whole. In particular, in furtherance

of NACDL’s mission to safeguard fundamental

constitutional rights, NACDL frequently appears as

amicus in cases involving prisoners’ access to courts.

1

In accordance with Supreme Court Rule 37, amicus curiae states

that no counsel for a party authored this brief, in whole or part, and

no counsel or party made a monetary contribution to fund the

preparation or submission of this brief. No person other than the

amicus curiae, its members, and its counsel made any monetary

contribution to its preparation and submission. Counsel of record

for the parties have received timely notice of the intent to file this

brief and have consented to its filing.

2

SUMMARY OF THE ARGUMENT

In this case, the Third Circuit held that 28 U.S.C.

§1915(g) bars a prisoner from proceeding in forma

pauperis when appealing the dismissal of a civil suit if

that dismissal was the prisoner’s “third strike.” Pet.

App. 3a-4a. As the Petition explains, that holding

warrants this Court’s review both because it deepens a

square conflict of authority and because it is wrong as a

matter of statutory interpretation. But the Third

Circuit’s decision warrants review for an additional

reason: it runs counter to the axiom that a party who

loses in the trial court will have the opportunity to be

heard, at least once more, on appeal. It does so in ways

that raise significant constitutional questions, and in

cases that present important issues of constitutional

magnitude.

That unjust consequence is the unavoidable result of

the Third Circuit’s decision. For the vast majority of our

Nation’s prisoners, accessing the courts is all but

impossible without in forma pauperis status.

Preventing prisoners from appealing in forma pauperis

third strike dismissals, thus, is tantamount to denying

them any appellate review. But appellate review is so

fundamental to our justice system that if Congress

intended section 1915(g) to yield such a result then it

surely would have said so. The Third Circuit, thus,

reached its holding not only in the face of statutory and

congressional silence, but also over the repeated

pronouncements of this Court that section 1915’s

express purpose is not to indiscriminately cull pro se

prisoners from the ranks of federal plaintiffs, but to

facilitate the review of meritorious prisoner claims.

3

The need for this Court’s review of this question is

acute. Over 700,000 prisoners—a population accounting

for almost 40% of prisoners’ civil rights and prison

conditions claims filed nationwide—are incarcerated in

the States affected by the split of authority that the

Petition highlights. And wrongful dismissals that count

as strikes are sufficiently common that this Court simply

cannot presume that the Third Circuit’s rule will be

without consequence. To the contrary, it is unavoidable

that effectively preventing prisoners from appealing

third strikes will result in erroneous deprivations of

constitutional protections. Further, the Third Circuit’s

decision creates a profound tension with this Court’s

decision in Coleman v. Tollefson, 135 S. Ct. 1759 (2015)

which plainly contemplates appellate review of third

strikes.

The Petition for a writ of certiorari should be

granted.

ARGUMENT

I.

This Case Presents An Important And

Recurring Question Regarding The Proper

Interpretation Of 28 U.S.C. §1915(g).

The American legal system is “committed to

guaranteeing that prisoner claims of illegal conduct by

their custodians are fairly handled according to law.”

Jones v. Bock, 549 U.S. 199, 203 (2007). The ability of

prisoners to proceed in forma pauperis—both initially

in the district court and then on appeal—is a critical part

of that commitment. The Third Circuit’s conclusion here

undermines that commitment in two respects. First, the

Third Circuit’s rule runs afoul of a basic principle of

4

American judicial review: that the losing party in the

district court will live to fight another day. Second, the

Third Circuit’s rule presents a pressing constitutional

question about the ability of indigent prisoners to access

the courts.

A.

Review Is Warranted Because The Vast

Majority Of The Nation’s Prisoners

Depend On The Federal In Forma

Pauperis Statute To Access The Courts.

Some 2.1 million people are incarcerated in the

Nation’s correctional facilities. See Danielle Kaeble &

Lauren Glaze, U.S. Dep’t of Justice, Bulletin,

Correctional Populations in the United States, 2015, at

12-13

app.

tbl.1

(2016),

https://www.bjs.gov/

content/pub/pdf/cpus15.pdf. As of December 2015, “1%

of adult males living in the United States were serving

prison sentences of greater than 1 year.” E. Ann Carson

& Elizabeth Anderson, Bureau of Justice Statistics, U.S.

Dep’t of Justice, NCJ 250229, Bulletin, Prisoners in

2015, at 8 (2016). Further, “60% of the people in prison

today are people of color,” where “[b]lack men are nearly

six times as likely to be incarcerated as white men” and

“Hispanic men are 2.3 times as likely” to be imprisoned.

The Sentencing Project, Fact Sheet: Trends in U.S.

Corrections, at 5 (June 2017).

All of these “[p]risoners retain the essence of human

dignity inherent in all persons.” Brown v. Plata, 563 U.S.

493, 510 (2011). That “animat[ing]” principle has shaped

the judiciary’s “responsibility” to safeguard those

prisoners’ dignity by “not shrink[ing] from [its]

obligation to enforce the constitutional rights of all

persons, including [those of] prisoners.” Id. at 510-11

5

(internal quotation marks omitted). Federal courts thus

“presume that * * * Congress did not leave prisoners

without a remedy for violations of their constitutional

rights.” Id. at 526.

To vindicate constitutional protections, the vast

majority of the Nation’s prisoners depend on 28 U.S.C.

§1915, which governs in forma pauperis proceedings.

See Rowland v. Cal. Men’s Colony, Unit II Men’s

Advisory Council, 506 U.S. 194, 201 n.4 (1993)

(acknowledging that “the ‘overwhelming majority”’ of

2

cases filed by prisoners proceed in forma pauperis). To

be sure, 28 U.S.C. §1915(g) provides that a prisoner

“shall” not “bring a civil action or appeal a judgment in a

civil action” in forma pauperis “if the prisoner has, 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.” But as this Court explained in

Jones, the purpose of the Prison Litigation Reform Act

(“PLRA”) is “to filter out the bad claims and facilitate

consideration of the good.” 549 U.S. at 204.

2

See, e.g., U.S. Courts, Table B-19, U.S. Courts of Appeals—Pro Se

Cases Commenced, by Source, During the 12-Month Periods

Ending September 30, 2013 and 2014 (2014), http://

www.uscourts.gov/sites/default/files/statistics_import_dir/

B19Sep14.pdf (detailing that 15,180 actions by prisoners filed in the

courts of appeals, 13,666 were filed pro se).

6

This is an important assurance. In 2016 alone,

prisoners filed 28,981 cases alleging violations of their

3

civil rights or unconstitutional conditions.

It is difficult to square the vital role section 1915

plays in ensuring that prisoners’ meritorious claims are

heard with the Third Circuit’s conclusion that section

1915(g) “den[ies] a prisoner [in forma pauperis] status

for, and therefore effectively bar[s] appellate review of,

[a] District Court’s imposition of the prisoner’s third

strike.” Pet. App. 13a. Indeed, this apparent disconnect

between Congress’s purpose, e.g., 141 Cong. Rec. S7526

(daily ed. May 25, 1995), this Court’s oft-repeated

references to the same end, e.g., Jones, 549 U.S. at 20304, and the Third Circuit’s understanding of the purpose

of section 1915(g) alone is a sufficient reason for this

Court to grant the Petition for a writ of certiorari.

B.

Review Is Warranted Because The

Third Circuit’s Decision Cuts Off Access

To Appellate Review Without A Clear

Directive From Congress.

Because the vast majority of prisoners are indigent,

the Third Circuit’s ruling regarding the statutory three

strikes limitation on in forma pauperis appeals creates

a substantial barrier for many prisoners seeking access

to the courts. That threatens a foundational premise of

our legal system: that a party who loses in the district

court will have the opportunity to seek appellate review.

Though Congress is largely free to regulate access to the

3

See Fed. Judicial Ctr., Federal Court Cases: Integrated Database,

https://www.fjc.gov/research/idb/interactive/IDB-civil-since-1988

(last visited Dec. 17, 2017).

7

courts, but see infra Part I.C, this basic principle

manifests itself in a strong presumption favoring

appellate review. See 28 U.S.C. §1291. After all, “where

Congress intends to preclude judicial review of

constitutional claims its intent to do so must be clear.”

Demore v. Kim, 538 U.S. 510, 517 (2003) (internal

citations omitted).

This rule of construction makes good sense.

Appellate courts lay down firm rules—applying across

cases—by which people and businesses may structure

their affairs. See Antonin Scalia, The Rule of Law as a

Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989). They

also correct erroneous adjudications by the lower courts.

See Griffin v. Illinois, 351 U.S. 12, 18 (1956); see also

Parker v. Dugger, 498 U.S. 308, 321 (1991) (“We have

emphasized repeatedly the crucial role of meaningful

appellate review in ensuring that the death penalty is

not imposed arbitrarily or irrationally.”). These

principles explain why this Court has declared it

“unthinkable” that a statute would permit a “single

judge” to enter “judgment” in a case “without” the

possibility of “review of the relief granted or denied.”

United States v. E. I. du Pont de Nemours & Co., 366

U.S. 316, 324-25 (1961) (quoting Hartford-Empire Co. v.

United States, 324 U.S. 570, 571 (1945)) (internal

quotation marks omitted).

The Third Circuit’s decision flouts this principle. The

text of section 1915(g) lacks the requisite clear

manifestation of congressional intent to foreclose

meaningful appellate review of trial court judgments. Its

legislative history too is devoid of any suggestion that

Congress intended to dispense with the basic

8

presumption in favor of appellate review of final

judgments, typified by section 1291’s expressly broad

grant of jurisdiction to decide such appeals. See, e.g., 141

Cong. Rec. S7526 (daily ed. May 25, 1995) (statement of

Sen. Kyl). Put simply, the Third Circuit’s decision fails

to square with the common-sense principle that if

Congress intended to “effectively eliminate” the courts

of appeals’ “appellate function” with respect to the

appeal of a third strike, “it would have clearly said so.”

See Thompson v. DEA, 492 F.3d 428, 432 (D.C. Cir.

2007).

Indeed, this aspect of the Third Circuit’s decision

conflicts with this Court’s decision in Coleman.

Although this Court held “that a prisoner who has

accumulated three prior qualifying dismissals under

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

pauperis while his appeal of one such dismissal is

pending,” it emphasized that the “risk” of an erroneous

dismissal of a post third strike civil action did “not seem

great” because “in some instances the prisoner will be

able to refile his or her lawsuit after the reversal [of the

third strike], seeking in forma pauperis status at that

time.” 135 S. Ct. at 1764-65. That safeguard is wholly

illusory if, as the Third Circuit held, a prisoner has no

4

meaningful opportunity to appeal.

4

In Coleman, this Court expressed concern that allowing in forma

pauperis litigation while appeals of third strikes are pending “would

produce a leaky filter,” allowing a prisoner to continue to file

frivolous claims even after the three strikes rule should apply. 135

S. Ct. at 1764. But as the Ninth Circuit explained in Richey v.

Dahne, this concern is of no moment if proceeding in forma

9

C.

Review Is Warranted Because The

Third Circuit’s Decision Raises New

Constitutional Difficulties.

The Petition also should be granted because the

Third Circuit’s decision gives rise to serious

constitutional difficulties. The Due Process and Equal

Protection Clauses together guarantee that indigent

litigants are “afford[ed] adequate and effective appellate

review.” Griffin, 351 U.S. at 20; see Smith v. Bennett,

365 U.S. 708, 709 (1961) (finding that imposing fees on an

indigent prisoner wanting to “sue for his liberty”

violates “equal protection of the laws”). Indeed, this

Court “has unequivocally held that waiver of filing fees

is in some cases constitutionally required,” specifically

for those claims implicating fundamental rights. Thomas

v. Holder, 750 F.3d 899, 908 (D.C. Cir. 2014) (Tatel, J.,

concurring) (citing Bennett, 365 U.S. at 712; Griffin, 351

U.S. at 18-19); see Wolff v. McDonnell, 418 U.S. 539, 579

(1974) (stating that due process “assures that no person

will be denied the opportunity to present to the judiciary

allegations concerning violations of fundamental

constitutional rights”).

By holding that prisoners cannot challenge a third

strike in forma pauperis, the Third Circuit created

significant tension with that constitutional principle.

Cases dismissed as third strikes often involve prisoners

seeking to vindicate their fundamental constitutional

rights. Yet the Third Circuit’s decision creates a

“prohibitive financial barrier” to bringing appeals from

pauperis is limited to an appeal of a third strike. 807 F.3d 1202, 1209

(9th Cir. 2015).

10

those dismissals. Thomas, 750 F.3d at 906 (Tatel, J.,

concurring) (internal quotation marks omitted). Because

“[n]o Court ought, unless the terms of an act rendered it

unavoidable, to give a construction to it which should

involve a violation, however unintentional, of the

constitution,” Parsons v. Bedford, 28 U.S. 433, 448-49

(1830), it is important that this Court review the Third

Circuit’s construction of section 1915(g).

II.

The Court Should Resolve The Question

Presented Now And In This Case.

The Petition establishes that the question presented

is the subject of a mature and acknowledged split of

authority, which the Solicitor General already has

addressed on behalf of the United States. Pet. at 10-15.

Further, the Third Circuit’s decision is in serious tension

with basic principles favoring appellate review of trial

court decisions and raises important constitutional

concerns. See discussion supra Part I.

This Court’s prompt review of the question

presented is necessary for yet another reason: the

existing split already is having a profound impact on

many of the Nation’s prisoners. This impact greatly

jeopardizes the fair adjudication of numerous important

constitutional claims.

A.

A Substantial Portion Of The Nation’s

Prisoners Already Are Impacted By

The Existing Split Of Authority.

As discussed above, proceeding in forma pauperis on

appeal of a third strike is critical to protecting a

prisoner’s “meaningful access to the federal courts.” See

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

11

Petition correctly explains that meaningful access

presently is lacking for prisoners in the Third Circuit, as

well as the Seventh Circuit. Pet. at 15; see Bryant v.

Brin, 621 F. App’x 859, 860 (7th Cir. 2015) (citing

Robinson v. Powell, 297 F.3d 540, 541 (7th Cir. 2002)). In

2015, the States in the Third and Seventh Circuits

accounted for over 12% of the Nation’s prisoners

5

(approximately 266,900). Those prisoners filed more

than 20% of the Nation’s prisoner civil rights and prison

6

conditions suits in the federal district courts.

By contrast, the Ninth and Tenth Circuits have held

that in forma pauperis status is available to prisoners

during the appeal of their third strikes. And in 2015, the

States in those circuits housed over 22% of the Nation’s

7

prisoners (approximately 472,000). Furthermore,

during FY 2016, prisoners in these circuits accounted for

almost 20% of all prisoners’ civil rights and prison

8

conditions cases filed nationwide.

Given that courts overseeing more than one-third of

the Nation’s prisoners already have addressed the

question presented, this issue should not percolate any

5

See Kaeble & Glaze, supra p. 4.

6

See Fed. Judicial Ctr., supra note 3 (showing the total number of

prisoners’ civil rights and prison conditions cases filed nationwide

(28,981) and in the district courts of the Third and Seventh Circuits

(5,821) between October 1, 2015, and September 30, 2016).

7

8

See Kaeble & Glaze, supra p. 4.

See Fed. Judicial Ctr., supra note 3 (showing the total number of

prisoners’ civil rights and prison conditions cases filed in the district

courts of the Ninth and Tenth Circuits (5,664) between October 1,

2015, and September 30, 2016).

12

further in the courts of appeals. The civil rights of over

700,000 prisoners already are affected by the split of

authority presented by the Petition. This Court should

grant review now to clarify the statutory and

constitutional rights of these prisoners.

B.

The Third Circuit’s Resolution Of The

Question Presented Will Deprive

Prisoners With Meritorious Claims Of

Meaningful Access To The Courts.

By effectively depriving prisoners of meaningful

appellate review of third strike determinations, the

Third Circuit has embraced a rule that threatens to

“freeze out meritorious claims” and “ossify district court

errors.” Adepegba v. Hammons, 103 F.3d 383, 388 (5th

Cir. 1996). And errors in assessing strikes under

section 1915(g) are not hard to find.

In a recent example, this Court in Holt v. Hobbs

reversed a district court’s decision, affirmed by the

Eighth Circuit, that a Muslim prisoner failed to state a

claim that a prison grooming policy prohibiting beards

violated his rights under the Religious Land Use and

Institutionalized Persons Act (RLUIPA). 135 S. Ct. 853,

859-62, 867 (2015). In reversing, this Court explained

that the district court “misunderstood the analysis that

RLUIPA demands” in at least three different respects,

and held that, far from failing to state a claim under

RLUIPA, the prisoner’s allegations were sufficient to

establish that the prison’s policy “violate[d]” the statute.

Id. at 867. Notably, the district court had explicitly

stated that the dismissal should count as a section

1915(g) strike. See Holt v. Hobbs, No. 5:11-cv-00164BSM-JJV, 2012 WL 994481, at *1-2, *8 (E.D. Ark. Jan.

13

27, 2012), report and recommendation adopted, 2012 WL

993403, at *1 (E.D. Ark. Mar. 23, 2012).

Holt is hardly unique. Indeed, examples of wrongly

assessed strikes span a wide array of fundamental areas

of constitutional law:

1.

Religious Freedom Cases

a. In Williams v. Wilkinson, 645 F. App’x 692, 70205, 709-10 (10th Cir. 2016), the Tenth Circuit reversed

the dismissal of RLUIPA and First Amendment claims

where a Muslim prisoner was denied a kosher diet.

Despite the clear teachings of Holt and the Tenth

Circuit’s decision in Yellowbear v. Lampert, 741 F.3d 48

(10th Cir. 2014) (Gorsuch, J.), the district court

dismissed the suit as “frivolous” and imposed a strike

under section 1915(g) because the court thought that the

prisoner’s “sincerely held religious belief” could just as

easily have been satisfied by the halal diet the prison

provided. Williams, 645 F. App’x at 696, 700; see also

Williams v. Wilkinson, No. CIV 13-206-RAW-SPS,

2015 WL 1268270, at *3 (E.D. Okla. Mar. 19, 2015).

b. In Wagner v. Campuzano, 562 F. App’x 255, 25556 (5th Cir. 2014) (per curiam), the Fifth Circuit

reversed the dismissal of RLUIPA and First

Amendment claims where a Christian prisoner alleged

that inmates were not allowed to sing in choirs or play

musical instruments during Christian religious services,

even though another group was exempted from those

bans. See also Wagner v. Campuzano, No. 1:12-cv-205-C

ECF, 2013 WL 4851618, at *2 (N.D. Tex. Sept. 11, 2013).

The district court had dismissed the claims as “frivolous”

14

and imposed a strike under section 1915(g). Wagner, 562

F. App’x at 256.

c. In Robledo v. Leal, 531 F. App’x 479, 479-80 (5th

Cir. 2013) (per curiam), the Fifth Circuit reversed the

dismissal of RLUIPA, First Amendment, and

retaliation claims alleging that prisoners were strip

searched while leaving Catholic services, in retaliation

for their faith. The district court had dismissed the

claims as “frivolous” and imposed a strike under section

1915(g). Id. at 480.

2.

Free Speech Cases

a. In Richey v. Dahne, 807 F.3d 1202, 1204-06 & n.1

(9th Cir. 2015), the Ninth Circuit reversed the dismissal

of a First Amendment retaliation claim where the prison

staff failed to process a prisoner’s grievances (about

access to clean clothes and showers) because the staff

objected to his description of the issues. In that case, the

district court had held that the prisoner failed to state a

claim. Id. at 1208. The reversed dismissal was the

prisoner’s third strike. Id. at 1204.

b. In Walker v. Bertrand, 40 F. App’x 988, 989-90 (7th

Cir. 2002), the Seventh Circuit reversed dismissal of a

First Amendment claim where a prisoner was placed in

segregation on two separate occasions in retaliation for

filing a grievance and a lawsuit. The district court had

held that the prisoner failed to state a claim and assessed

a strike under section 1915(g). Id. at 989.

15

3.

Eighth Amendment And Due

Process Cases

a. In Womble v. Harvanek, No. 17-7023, 2017 WL

6333936, at *1-2 (10th Cir. Dec. 12, 2017) (unpublished),

the Tenth Circuit reversed the dismissal of a case where

the prisoner complained that the temperature in his cell

was regularly over 90 degrees, causing him to become

“severely dehydrated” on three different occasions

within a month. Id. at *1. Moreover, when the prisoner

raised this complaint with prison officials, he was told to

drink water that was “brown in color” and “often made

[him] sick from drinking [it].” Id. The prisoner

specifically alleged that he vomited “many times” from

drinking the water. Id. The district court had dismissed

the case for failing to state a claim and imposed a strike

under section 1915(g). Id.

b. In Ward v. Fisher, 616 F. App’x 680, 682, 685 (5th

Cir. 2015) (per curiam), the Fifth Circuit reversed the

dismissal of a retaliation claim where a prisoner was

transferred from one prison to another prison explicitly

because he requested medical treatment for a

bothersome skin condition. He was told by prison

officials that if he continued to complain, he would be

moved again. Id. at 682. The district court had dismissed

the case for failing to state a claim and imposed a strike

under section 1915(g). Id.

c. In Dominguez v. Moore, 149 F. App’x 281, 283-84

(5th Cir. 2005) (per curiam), the Fifth Circuit reversed

the dismissal of a claim that prison guards retaliated

against a prisoner by affixing his handcuffs so tight that

the prisoner’s hands became “grossly swollen,” with

“deep cuts” around his wrists. Id. The district court had

16

dismissed the case “for frivolity and for failure to state a

claim.” Id. at 282.

****

Depriving prisoners of meaningful access to

appellate review from third strike determinations will

not only insulate the third strike judgment from appeal.

Because there is no expiration date in section 1915(g) for

strikes, a wrongly assessed third strike will also

prevent, in perpetuity, a prisoner from filing in forma

pauperis unless the prisoner can allege “imminent

danger of serious physical injury.” 28 U.S.C. §1915(g).

But constitutional protections go far beyond that limited

scenario. Thus, a wrongly assessed third strike would

affect future meritorious suits by that prisoner.

As the above examples illustrate, mistakes happen.

Properly read, section 1915(g) provides an avenue for

indigent prisoners to seek correction of district court

errors. But the Third Circuit’s reading of section 1915(g)

effectively eliminates that path. This Court should grant

review of this issue now in order to ensure that indigent

prisoners retain the ability to seek correction of

erroneous third strikes.

17

CONCLUSION

For the foregoing reasons, as well as those

expressed in the Petition, amicus curiae the National

Association of Criminal Defense Lawyers urge this

Court to grant the Petition for a writ of certiorari.

December 27, 2017

Respectfully submitted,

JEFFREY T. GREEN

CO-CHAIR, NATIONAL

ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS AMICUS

COMMITTEE

1660 L Street, N.W.

Washington, D.C. 20036

(202) 872-8600

CLIFFORD W. BERLOW

Counsel of Record

NATHANIEL K.S. WACKMAN

EDWARD P. VRTIS

JENNER & BLOCK LLP

353 N. Clark Street

Chicago, IL 60654

(312) 840-7366

cberlow@jenner.com

Counsel for Amicus Curiae

The National Association of

Criminal Defense Lawyers