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Cornell Journal of Law and Public Policy

Keywords

28 U.S.C. § 1915(g), Prison Litigation Reform Act of 1996, In forma pauperis statute, Indigent litigants, Prisoner filings, Filing fees

Abstract

In 1892, Congress enacted an in forma pauperis statute that waived filing fees for indigent litigants so that anyone, regardless of their financial ability to pay court fees and costs, could bring a federal action. Seventy years later, the Supreme Court reaffirmed that, so long as a case was "not clearly frivolous," in forma pauperis status should be granted, as "it is our duty to assure to the greatest degree possible . . . equal treatment for every litigant before the bar." Yet, by the 1990s, federal courts faced a staggering increase in filings. Civil rights litigation, alone, experienced a spike from 18,922 actions filed in U.S. district courts in 1990 to 43,278 in 1997. Several factors likely contributed to this trend-from an increasingly litigious society to the expansion of civil rights law in the early 1990s, including passage of the 1990 Americans with Disabilities Act and the Civil Rights Act of 1991, as well as the amendment of the Rehabilitation Act of 1973. Congress sought to control the surge. Despite the fact that imprisoned and non-incarcerated Americans contributed to the burgeoning federal caseload, prisoners bore the brunt of remedial legislation. The Prison Litigation Reform Act ("PLRA") was Congress's response to the rising tide of civil rights litigation.

To the extent the PLRA sought to achieve a reduction in prisoner filings, its garn ishment procedure and screening mechanism in § 1915A combine to create an economic disincentive to filing and a swift procedure for courts to dismiss bogus claims. Section 1915(g) , however, goes too far. The three-strikes language has proven problematic for courts to apply and has generated inconsistent approaches across courts of appeals. Its indefinite bar from future in forma pauperis filings is overly broad, and there is no mechanism to save meritorious claims unless an indigent three-strikes prisoner is able to somehow obtain hundreds of dollars for filing costs and fees. The latter, in particular, runs afoul of Congress's intent in passing the first in forma pauperis statute in 1892. As the Supreme Court has recognized, "that statute is intended to guarantee that no citizen shall be denied an opportunity 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." Indeed, prior to the passage of § 1915(g) , the Supreme Court held that "[u]nless the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant, . . . the request of an indigent for leave to appeal in forma pauperis must be allowed." For § 1915(g) to operate so as to require a three-strikes litigant to pay the full filing fee as a condition precedent to filing a potentially meritorious claim defies not only the purpose of the original in forma pauperis statute, but of the fundamental right to seek redress for wrongs in a court of law.

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