by Dale Chappell

The U.S. Court of Appeals for the Federal Circuit affirmed the dismissal of a Native American prisoner’s lawsuit against the United States involving Indian affairs, citing the prisoner’s previous “frivolous” court challenges to prison conditions to invoke the 3-strikes rule under the Prison Litigation and Reform act (PLRA). The Court’s move extends the PLRA to more situations than what the law was originally intended to fix: namely, frivolous prisoners’ lawsuits about prison conditions.

The prisoner, Victor Fourstar, has never been one to shy away from challenging prison conditions he’s faced over his lengthy federal prison sentence. Those prison-condition challenges, however, were often dismissed as “frivolous” by the courts, with each counted as a “strike” under the PLRA. Three strikes accumulated by a prisoner bars any further court filings under the PLRA, absent an “imminent danger of serious physical injury.”

The 3-strikes provision of the PLRA was enacted by Congress in 1996 in an effort to curb lawsuits filed by prisoners about prison conditions. Codified under 28 U.S.C. § 1915(g), the 3-strikes provision provides:

“In no event shall a prisoner being a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner 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 was frivolous, malicious, or fails to state a claim upon which relief may be granted.”

In March 2018, Fourstar brought a federal lawsuit in the U.S. Court of Federal Claims against the United States, claiming that the Keystone XL Pipeline was a threat to the land and drinking water of the Standing Rock Indian Reservation in South Dakota. Fourstar further alleged that the pipeline was illegal.

But no court ever reached the merits of Fourstar’s claims. Instead, the Federal Claim Court said that the PLRA required dismissal of the lawsuit because Fourstar had three previous prison condition challenges dismissed by federal courts as frivolous. Even though his current lawsuit had nothing to do with prison conditions, the court found that “Fourstar is currently incarcerated, and has, on more than three occasions while incarcerated, filed complaints or appeals in a court of the United States that were dismissed as frivolous, malicious, or for failure to state a claim.”

After his release from prison just weeks later, Fourstar filed a timely notice of appeal in the U.S. Court of Appeals for the Federal Circuit. The government responded by citing some of Fourstar’s earlier challenges to prison conditions that were dismissed by federal court as frivolous, some as old as 2007 and 2009, and urged the Court to dismiss Fourstar’s appeal under the 3-strikes rule.

The Court of Appeals, however, found otherwise, noting that because Fourstar was not in prison when the notice of appeal was filed, the Court wasn’t bound by the PLRA’s strict rules dealing with prisoners. This was true, the Court said, even though Fourstar was now back in prison after he filed the notice. It was Fourstar’s status at the time his notice of appeal was filed that counts, the Court said.

Unfortunately, the Court found that the Court of Federal Claims did not abuse its discretion in dismissing Fourstar’s lawsuit, as his allegations were “too attenuated” to excuse the 3-strikes rule under the PLRA’s “imminent danger” exception. The Court accordingly affirmed the Federal Court of Claims’ dismissal of Fourstar’s lawsuit as barred by PLRA’s 3-strikes rule. See: Fourstar v. United States, 18-2081 (Fed. Cir. Feb. 19, 2020).

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