MEEKS III v. RAY FNU FNU FNU FNU FNU FNU (2026)

PUBLISHED ORDER

Under the “three strikes” provision of the Prison Litigation Reform Act, a prisoner may not bring a civil action or appeal in forma pauperis, if he has brought an action or appeal “on 3 or more prior occasions, while incarcerated,” that has been “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. 28 U.S.C. § 1915(g).

The prisoner in this case, James Meeks, committed his third strike when the district court dismissed this very case for failure to state a claim upon which relief may be granted. He nevertheless seeks to proceed in forma pauperis in this appeal. He theorizes that his third strike should not trigger the three strikes rule, until after he has received appellate review of that dismissal.

Whether the three strikes rule applies when the third strike is itself the subject of the appeal is an open question in this circuit. See Alexander v. Texas Dept. of Crim. Just., 951 F.3d 236, 241 n.1 (5th Cir. 2020). The circuit courts are split on the issue. Compare Richey v. Dahne, 807 F.3d 1202, 1209–10 (9th Cir. 2015) (holding that prisoners may appeal in forma pauperis from a third strike), and Taylor v. Grubbs, 930 F.3d 611, 620 (4th Cir. 2019) (following Richey), with Parker v. Montgomery Cnty. Corr. Facility/Bus. Off. Mgr., 870 F.3d 144, 151–54 (3rd Cir. 2017) (applying the three strikes rule to the pending appeal).

In Coleman v. Tollefson, 575 U.S. 532, 135 S.Ct. 1759, 191 L.Ed.2d 803 (2015), the Supreme Court applied the three strikes rule, and denied in forma pauperis status, even though the prisoner's third dismissal remained pending on appeal. To be sure, the case involved an appeal in a different case—and not the appeal of the third strike itself. See id. at 534, 135 S.Ct. 1759. But that is a distinction without a difference. Both the text of the PLRA and the Supreme Court's analysis in Coleman makes clear that the three strikes rule applies with equal force in either appeal. “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.” Id. at 537, 135 S.Ct. 1759. And that logic “readily applies” here, even though the appeal is “of the same underlying case.” Alexander, 951 F.3d at 244 (Ho, J., concurring).

Coleman plainly overrules our court's prior holding that “[a] dismissal should not count against a petitioner until he has exhausted or waived his appeals.” Adepegba v. Hammons, 103 F.3d 383, 387–88 (5th Cir. 1996). We welcome the opportunity to align the law of our circuit with the plain text of the PLRA.

The motion to proceed on appeal in forma pauperis is denied.

James C. Ho, Circuit Judge: