Second Circuit: New York Prisoner’s Prior Cases Not PLRA Strikes
On March 14, 2024, the U.S. Court of Appeals for the Second Circuit held that a district court erred in dismissing a New York prisoner’s civil rights action for violating the “three strikes” provision of the Prison Litigation and Reform Act (PLRA), 42 U.S.C. § 1997e. The Court’s opinion is enlightening in several aspects, including whether claims barred under Heck v. Humphrey, 512 U.S. 477 (1994), count as “strikes.”
New York prisoner Maurice Cotton filed at least nineteen different lawsuits during his incarceration and leading up to the filing of the case under review. Cotton, a prisoner at Green Haven Correctional Facility, filed a lawsuit on December 6, 2018, that alleged he was wrongfully denied a transfer to Sing Sing Correctional Facility where he could earn a master’s degree at one of the college programs offered there. Cotton further alleged he was retaliated against for filing grievances related to the matter.
The U.S. District Court for the Western District of New York reviewed Cotton’s motion to proceed in forma pauperis (IFP). Under 28 U.S.C. § 1915(g), as amended by PLRA, IFP status is unavailable to any plaintiff with three previous federal actions that were dismissed as frivolous or malicious or for failure to state a claim. The district court found that Cotton had collected three prior “strikes” and therefore denied him IFP status, dismissing his claim when he then failed to pay the filing fee. Cotton appealed.
On review at the Second Circuit, attorneys with the office of New York Attorney General Letitia James (D) conceded error in that two of the lawsuits did not count as strikes under the PLRA. While that concession was sufficient to reverse the district court’s decision, the Court elected to review those cases and a third that the district court had ruled strikes.
The first strike was a “mixed dismissal,” wherein failure was found to state a federal claim and the district court declined to hear pendent state claims. But in Escalera v. Samaritan Vill., 938 F.3d 380 (2d Cir. 2019), the Court held that a mixed dismissal of state and federal claims was not a strike when the state-law claims were dismissed not on the merits but for lack of subject matter jurisdiction.
As to the second strike, that case was dismissed without prejudice for Cotton to amend. The Court said that meant it was therefore not a strike “because the suit continues” and “the court’s action falls outside of Section 1915(g),” per Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020).
Finally, the Court turned to the suit that implicated the holding in Heck—that a §1983 prisoner-plaintiff may not seek damages for an alleged violation of his constitutional rights which would also cast doubt on the validity of his conviction or sentence, unless that conviction or sentence has been invalidated. The Second Circuit noted a circuit split on whether Heck dismissals count as a strike: the Third, Fifth, Tenth, and D.C Circuits agree that Heck dismissals always count as strikes, while the Seventh Circuit held the issue is one of timing and jurisdiction, and the Ninth Circuit said a Heck claim does not accrue until the underlying claim has been successfully challenged. The Second Circuit agreed that “Heck dismissals do not categorically count as a strike.”
Rather, it said that “whether a Heck dismissal qualifies as a strike depends on the circumstances”—whether dismissal “turned on the merits or whether it was simply a matter of sequencing and timing.” So if dismissal was due to an inability to challenge an underlying conviction, a strike would ensue. On the other hand, where the Heck issue is still remediable, a strike is not incurred. Thus the district court’s denial of the IFP motion was vacated and the case remanded for further proceedings.
Before the Court, Cotton was represented by attorneys Rona Roper and Gregory Dubinski of Howell Shuster & Goldberg LLP in New York City. See: Cotton v. Noeth, 96 F.4th 249 (2d Cir. 2024).