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Fourth Circuit Resolves PLRA Three Strikes Confusion

By Robyn Hagan Cain on June 12, 2012 | Last updated on March 21, 2019

The Fourth Circuit Court of Appeals ruled last week that a North Carolina inmate can proceed in forma pauperis (IFP) under the Prison Litigation Reform Act (PLRA) "three strikes" rule with his lawsuit alleging the importance of a sanitary shave.

In 2011, Jonathan Leigh Henslee filed an inmate grievance with the North Carolina Department of Corrections stating that Alexander Correctional Institute's (AXCI) failure to enforce its grooming policy puts inmates at risk of contracting various infections. His quest for a clean shave made it to the Fourth Circuit after a district court dismissed his complaint for failure to state a claim on which relief can be granted.

AXCI's grooming policy requires that each inmate barber have three interchangeable razor heads at all times; one razor head is disinfected while the second is in use, and the two heads are switched between each shave; the third razor head is kept as a backup.

Henslee, in a less-than-eloquent claim, apparently argued that the barbers' non-compliance with the grooming policy violated his Eighth Amendment rights. He specifically alleged that at least one barbers failed to disinfect razor heads between uses, smeared saliva on a razor before use, wiped his "backside" with a razor before use, and refused requests to clean the razor. According to Henslee, prison officials are aware of the violations but do not supervise the barbers.

Congress amended the Prison Litigation Reform Act in 1996 to impose a "three strikes" rule to combat frivolous lawsuits. The PLRA three strikes rule precludes prisoners from bringing an action or appeal IFP "if the prisoner has, on three or more prior occasions ... brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted."

Henslee moved to proceed IFP on appeal, despite the fact that the district court's dismissal of the underlying claim was his third dismissal for failure to state a claim.

In this case, the Fourth Circuit Court of Appeals considered for the first time the circumstances under which a district court's dismissal acts as a third strike, precluding IFP status on appeal of the underlying dismissal.

The Fourth Circuit held that a "prior occasion" under the PLRA cannot include the dismissal of an underlying claim, and such a dismissal cannot act as a strike to preclude IFP status on its own appeal.

Because counting the district court's dismissal in Henslee's case as a third strike under the PLRA would effectively insulate the dismissal from appellate review, the Fourth Circuit Court of Appeals granted Henslee's motion to proceed IFP on appeal.

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