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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                       United States Court of Appeals
                                                Fifth Circuit

                                                                 FILED
                                                            February 20, 2020
                                 No. 18-20278                 Lyle W. Cayce
                                                                   Clerk

ARTRAI TURONE ALEXANDER,

             Plaintiff - Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ROCKY N. MOORE,
Texas Department of Criminal Justice Ferguson Unit Warden; THE
FERGUSON UNIT, Texas Department of Criminal Justice; WARDEN
KEVIN BELT, Texas Department of Criminal Justice Ferguson Unit
Assistant Warden; LINCOLN CLARK, Texas Department of Criminal Justice
Ferguson Unit Assistant Warden; ROBERT JENNINGS, Texas Department
of Criminal Justice Ferguson Unit Captain; ROXANNE SIMON, Texas
Department of Criminal Justice Ferguson Unit Counsel Substitute; DOVIER
TURNER, Texas Department of Criminal Justice Ferguson Unit Investigator;
CHRISTOPHER HOWETH, Texas Department of Criminal Justice Ferguson
Unit Major; MICHAEL BATES, Texas Department of Criminal Justice
Ferguson Unit Major; ROBERT JENKINS, JR., Texas Department of
Criminal Justice Ferguson Unit Warden; GERALD JOZWIAK, Texas
Department of Criminal Justice Ferguson Unit Investigator; JAMES
MCKEE, Texas Department of Criminal Justice Ferguson Unit Assistant
Warden; YOLANDA JONES, Texas Department of Criminal Justice
Ferguson Unit Access to Courts (ATC) Supervisor,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before WIENER, HIGGINSON, and HO, Circuit Judges.
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                                 No. 18-20278
PER CURIAM:
      Artrai Turone Alexander, Texas prisoner # 2054329, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i).   We review the district court’s decision for abuse of
discretion. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (per curiam).
We affirm.
                                           I.
      Alexander is a prisoner in Texas and no stranger to the American court
system.   He has filed repeated suits for habeas corpus and for alleged
deprivations of his rights under 42 U.S.C. § 1983. In his most recent legal
action, and the subject of this appeal, Alexander filed a pro se § 1983 complaint
against various members of the Ferguson Unit of the Texas Department of
Criminal Justice (“TDCJ”).
      The allegations stem primarily from the aftermath of a prison riot on
December 7, 2016. That day, prison officers and inmates were embroiled in a
physical altercation in the mess hall, where Alexander was present. A gas
agent was eventually dispersed to control the situation, which involved some
two hundred inmates who were all on their feet.
      After the incident, Warden Rocky Moore directed Alexander to be moved
to closed custody, where he remained for twelve days from December 7 to
December 19.     Alexander alleges the cell was infested with roaches and
contained dead roaches and rat droppings. He relayed information about the
condition of the cell to several officers on shift, who registered his complaints
on the maintenance docket.
      Alexander faced a disciplinary proceeding for his involvement in the
December 7 incident. Counsel Substitute Roxanne Simon was appointed to
represent Alexander at the hearing, which was conducted by Captain Robert
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Jennings on December 19. Jennings found sufficient evidence to support the
charges of participating in the riot and creating a dangerous environment. He
imposed a punishment of forty-five days of cell restriction, forty-five days of
commissary restriction, loss of 350 days of good time credits, no contact visits
for four and a half months, closed custody lockdown confinement for one year,
and a demotion in line classification.
      As a result of this finding, Assistant Warden Lincoln Clark conducted a
hearing the next day, at which he changed Alexander’s prisoner classification
from “G2” to “G5,” a status that labelled Alexander as an offender with
assaultive and aggressive disciplinary problems.
      Apart from the riot incident, Alexander also maintains that Access to
Courts Supervisor Yolanda Jones refused to provide the legal materials he
requested for over two weeks despite being informed that they were necessary
for a court deadline, and that he was deprived of access to the law library.
      In response to these actions, Alexander alleged: (1) denial of his right of
access to the courts; (2) denial of due process regarding his disciplinary
conviction; (3) denial of due process regarding the treatment of his grievances;
(4) denial of due process regarding reclassification of his custodial status; (5)
retaliation; and (6) cruel and unusual punishment based on unsanitary
conditions of confinement.      He sought compensatory damages, punitive
damages, a declaratory judgment, and injunctive relief.
      The district court granted Alexander’s request to proceed in forma
pauperis (“IFP”). It later concluded, on the merits, that the complaint lacked
an arguable basis in law and dismissed all claims as frivolous. At the time the
district court entered final judgment, two of Alexander’s previous § 1983 suits
had already been dismissed as frivolous. See Alexander v. Dallas Cty. Police
Dep’t, No. 3:16-CV-3304 (N.D. Tex. Mar. 24, 2017), ECF TXND 3:16-CV-3304,

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16; Alexander v. Tex. Dep’t of Criminal Justice, No. 4:16-CV-3520 (S.D. Tex.
Nov. 28, 2017), ECF TXSD 4:16-CV-3520, 37.
      Alexander now appeals. He again requested to proceed IFP, which the
district court again granted.    He further requested the appointment of
appellate counsel, which the district court denied. Alexander challenges the
district court’s ruling on the appointment of counsel, as well as the dismissal
of his substantive claims.
                                          II.
      First, Alexander argues he was denied access to the courts. In the
district court, he asserted that Supervisor Jones’ refusal to provide legal
materials, in addition to inadequate access to the law library, undermined his
ability to litigate his pending cases and resulted in losing his case against
Dallas County in No. 3:16-CV-3304. To prevail on a denial-of-access claim, an
inmate must demonstrate actual injury by showing “that the alleged
shortcomings in the library or legal assistance program hindered his efforts to
pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996). The record
here, however, shows that Alexander’s complaint was dismissed because it was
found to be frivolous. See ECF TXND 3:16-CV-3304, 10, pp. 2–5 (concluding in
magistrate judge’s report and recommendation that Alexander’s claims were
barred by Heck v. Humphrey, 512 U.S. 477 (1994), or otherwise were not
cognizable § 1983 claims); see also ECF TXND 3:16-CV-3304, 15 (district court
order accepting magistrate judge’s report and recommendation). The district
court thus determined that Alexander failed to demonstrate any prejudice or
actual harm for his access-to-courts claim, a conclusion which Alexander does
not challenge on appeal. Instead, he now argues that he lost a separate case
against the TDCJ, No. 4:16-CV-3520, because he was denied materials to
litigate that case. This argument is raised for the first time on appeal, and

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thus barred. See Hannah v. United States, 523 F.3d 597, 600 n.1 (5th Cir.
2008). Alexander has therefore failed to carry his burden to show that the
district court abused its discretion in determining that he failed to demonstrate
an actual injury in support of his access-to-courts claim.
      Second, Alexander argues that TDCJ personnel failed to assist him
adequately in his disciplinary hearing in front of Captain Jennings, resulting
in a due process violation. To establish a due process violation, an inmate must
show that he was deprived of a protected liberty or property interest. See
Sandin v. Conner, 515 U.S. 472, 483–84 (1995). Appellant does not adequately
brief any argument contesting the district court’s conclusion that his
disciplinary conviction did not implicate a constitutionally-protected liberty or
property interest. He has thus waived any such argument and has failed to
demonstrate an abuse of discretion regarding that claim.
      Third, the district court did not abuse its discretion in dismissing
Alexander’s claim that his grievances were mishandled or improperly denied,
as prisoners have no due process rights in the inmate grievance process. See
Geiger, 404 F.3d at 374 (holding an inmate “does not have a federally protected
liberty interest in having these grievances resolved to his satisfaction”).
      Fourth, Alexander contends that his due process rights were violated
when Assistant Warden Clark reclassified him to G5 status, an allegedly-
biased act since Clark was involved in the December 7 mess hall incident. The
district court dismissed this claim on the ground that prisoners do not have a
constitutionally-protected liberty interest in any particular             custodial
classification.   See Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999
(“Inmates have no protectable property or liberty interest in custodial
classifications.”) (internal quotations and citation omitted). And while an
inmate may maintain a due process challenge to a custodial reclassification

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                                No. 18-20278

that results in a transfer to lockdown, a prisoner must demonstrate
“extraordinary circumstances” by showing that the change in classification
“imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Hernandez v. Velasquez, 522 F.3d 556, 562
(5th Cir. 2008) (per curiam) (internal quotations and citation omitted).
Alexander’s allegations about the conditions of his one-year lockdown are
comparable to those in Hernandez and do not show that his lockdown was so
harsh that it posed an atypical or significant hardship. See id. at 563–64
(finding lockdown confinement in a shared cell for one year with permission to
leave only for showers, medical appointments, and family visits was
“comparable to, if not less severe than those found unactionable in other
cases”). Alexander’s argument thus fails.
      Fifth, Alexander argues TDCJ officials impermissibly retaliated against
him in response to his protests against the Ferguson unit and his pending
lawsuits against TDCJ. “To prevail on a claim of retaliation, a prisoner must
establish (1) a specific constitutional right, (2) the defendant’s intent to
retaliate against the prisoner for his or her exercise of that right, (3) a
retaliatory adverse act, and (4) causation.” McDonald v. Steward, 132 F.3d
225, 231 (5th Cir. 1998). Alexander again fails to adequately brief a challenge
to the district court’s determination that his allegations were insufficient to
show that any of the defendants knew of his complaints or grievances against
them, much less that their actions were motivated by his protected activity.
      We next address Alexander’s claim that unsanitary cell conditions
violated the Eighth Amendment’s prohibition against cruel and unusual
punishment.    To make a constitutional claim based on unsanitary cell
conditions, a prisoner must show not only that the conditions were objectively
“so serious as ‘to deprive prisoners of the minimal civilized measure of life’s

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                                  No. 18-20278

necessities,’” Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (quoting
Harris v. Angelina County, 31 F.3d 331, 334 (5th Cir. 1994)), but also that “the
responsible prison officials acted with deliberate indifference to his conditions
of confinement,” Harper, 174 F.3d at 720. To establish deliberate indifference,
the prisoner must show that the prison official knew of and disregarded an
excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825,
837 (1994). That is, the prisoner must show both that (1) the official was aware
of facts from which the inference could be drawn that a substantial risk of
serious harm existed, and (2) the official drew the inference. Id. “But an
official’s failure to alleviate a significant risk that he should have perceived but
did not . . . cannot under our cases be condemned as the infliction of
punishment.” Id. at 838.
      The district court concluded that the alleged cell conditions were not so
harsh as to rise to the level of a constitutional violation. And in any event,
Alexander’s claim is meritless because he failed to allege that any of the
defendants knew of and ignored the condition of the cell. While Alexander
reported the cell conditions to officers on shift, he cannot make the requisite
showing that they in fact “drew the inference” that there was a substantial risk
of serious harm.
      Finally, we deny Alexander’s request for appointment of counsel on
appeal. This court may appoint counsel in civil rights suits under exceptional
circumstances. Cooper v. Sheriff, Lubbock County, 929 F.2d 1078, 1084 (5th
Cir. 1991). Alexander’s case presents no such circumstances.
                                        III.
      The district court’s dismissal of Alexander’s instant case as frivolous
counts as one strike for purposes of 28 U.S.C. § 1915(g), and Alexander has two
other strikes because his cases were dismissed as frivolous in Alexander v.

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                                       No. 18-20278

Dallas Cty. Police Dep’t, No. 3:16-CV-3304 (N.D. Tex. Mar. 24, 2017), and
Alexander v. Tex. Dep’t of Criminal Justice, No. 4:16-CV-3520 (S.D. Tex. Nov.
28, 2017). See 28 U.S.C. § 1915(g); Coleman v. Tollefson, 135 S. Ct. 1759, 1763
(2015).
       Because Alexander has accumulated at least three strikes under
§ 1915(g), he is now barred from proceeding IFP in any civil action or appeal
filed while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury.1
       Alexander is warned that frivolous, repetitive, or otherwise abusive
filings will invite the imposition of additional sanctions, which may include
dismissal, monetary sanctions, and restrictions on his ability to file pleadings
in this court and any court subject to this court’s jurisdiction. Alexander is
further warned that he should review any pending appeals and actions and
move to dismiss any that are frivolous.
       AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
§ 1915(g) BAR IMPOSED; SANCTION WARNING ISSUED.




       1 Defendants here could have argued that this appeal should not have proceeded IFP,
on the theory that the district court dismissal of this case as frivolous counts as Alexander’s
third strike, even though that judgment is pending in this very appeal. Our court rejected
such an argument in Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996)—we stated that
“[a] dismissal should not count against a petitioner until he has exhausted or waived his
appeals.” Id. at 387. But the Supreme Court subsequently held in Coleman v. Tollefson, 135
S. Ct. 1759 (2015), that “courts must count the dismissal even though it remains pending on
appeal.” Id. at 1761 (emphasis added). That said, Coleman involved a district court dismissal
that remained pending in a different appeal. See also id. at 1764–65 (“Coleman is not here
appealing from a third-strike trial-court dismissal. . . . If and when the situation that
Coleman hypothesizes does arise, the courts can consider the problem in context.”). So the
IFP question presented here is an open one in our circuit.
        Because the State did not challenge Alexander’s IFP status in this appeal, we decide
this case on the merits, and assume—without deciding—that he is entitled to treatment as a
pauper. See Davidson v. Buchanan, 137 F. App’x 659, 661 (5th Cir. 2005) (per curiam)
(declining to address plaintiff’s IFP status because it was “unchallenged”).
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JAMES C. HO, Circuit Judge, concurring:
      The district court found this to be a frivolous case. What’s more, it is the
third time a federal court has deemed an action by the plaintiff here frivolous—
triggering the “three strikes” rule under the Prison Litigation Reform Act. A
prisoner with three strikes may not bring an action or appeal in forma pauperis
(“IFP”), except in cases of imminent danger of serious physical injury. Under
the plain terms of 28 U.S.C. § 1915, this prohibition on IFP appeals applies
even where, as here, the third strike is the very subject of the appeal.
      The defendants did not object to IFP status in this appeal, so I join the
per curiam decision affirming the district court on the merits. But I write
separately to spell out the terms of the PLRA, out of respect for Congress’s
directive to the courts to deny IFP status to repeat frivolous claimants, and to
instead focus our limited resources on litigants with worthier claims.
                                        I.
      Congress enacted the nation’s first IFP statute in 1892 “to ensure that
indigent litigants have meaningful access to the federal courts,” by having
their “filing fees and court costs . . . assumed by the public.”          Neitzke v.
Williams, 490 U.S. 319, 324 (1989). That enactment has led, however, to the
proliferation of frivolous and wasteful IFP suits.          Frivolous lawsuits and
appeals are not only a waste of limited resources—they divert valuable judicial
time and attention away from the resolution of more worthy disputes. And
prison inmates, armed with the ability to file repeated suits IFP under 28
U.S.C. § 1915, are responsible for much of the problem. See, e.g., Roller v.
Gunn, 107 F.3d 227, 230 (4th Cir. 1997) (“In 1995, prisoners brought over 25%
of the civil cases filed in the federal district courts. In this circuit alone, IFP
filings accounted for almost half of the court’s 1995 caseload, and prisoners
were responsible for 75% of those filings.”) (citations omitted).

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      In response, Congress enacted the Prison Litigation Reform Act in 1996.
The PLRA revised the federal IFP statute to require a prisoner to execute an
affidavit attesting to his poverty and to file a certified copy of his prison trust
account in order to obtain IFP status. 28 U.S.C. § 1915(a)(1) & (2). If IFP
status is granted, the prisoner is excused from pre-paying the full amount of
the applicable filing and docketing fees. Id. § 1915(b)(1). Instead, the inmate
may break up the expense—he can pay a portion of the total fee upfront, and
then make monthly payments from his prison trust fund until the full amount
is satisfied. Id. § 1915(b)(2). By requiring the prisoner to pay the necessary
fees—albeit on an installment plan—the PLRA addresses the reality that a
“litigant whose filing fees and court costs are assumed by the public, unlike a
paying litigant, lacks an economic incentive to refrain from filing frivolous,
malicious, or repetitive lawsuits.” Neitzke, 490 U.S. at 324.
      Most relevant here, the PLRA also implemented a “three strikes” rule
that “limits a prisoner’s ability to proceed I.F.P. if the prisoner abuses the
judicial system by filing frivolous actions.” Abdul-Akbar v. McKelvie, 239 F.3d
307, 312 (3d Cir. 2001) (en banc).      Specifically, § 1915(g) provides that a
prisoner who accrues three strikes for filing frivolous actions or appeals is
thereby barred from proceeding IFP in the future, unless he can show
imminent threat of physical injury:

      In no event shall a prisoner bring 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 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) (emphasis added).


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                                         II.
      This appeal should not have been brought IFP. The district court found
this case to be frivolous. It is the third time an action by the plaintiff has been
deemed frivolous. And under the plain text of 28 U.S.C. § 1915(g), that should
have barred the plaintiff from bringing this IFP appeal.
      In Coleman v. Tollefson, 135 S. Ct. 1759 (2015), the prisoner filed
multiple federal lawsuits, three of which had been dismissed for failure to state
a claim. Id. at 1762. As he was in the process of appealing his third dismissal,
he concurrently filed additional lawsuits, and requested IFP status in each.
Id. Coleman argued that his third dismissal could not yet count as a “prior
occasion” until the conclusion of any and all appeals from that dismissal.
      The Supreme Court unanimously disagreed. “Linguistically speaking,
we see nothing about the phrase ‘prior occasions’ that would transform a
dismissal into a dismissal-plus-appellate-review.” Id. at 1763. Under the plain
language of the text, the Court concluded that 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.
The word “occasion,” the Court explained, is normally understood to be “a
particular occurrence,” a “happening,” or an “incident.” Id. (quoting dictionary
definitions). A district court dismissal and a subsequent appeal are discrete
events and thus different “occasions.”
      This conclusion is further reinforced by surrounding statutory text. The
statute turns on whether a prisoner has “on 3 or more prior occasions
. . . brought an action or appeal” that resulted in a strike under 28 U.S.C.
§ 1915(g) (emphasis added). So the statute itself makes clear that either an
action “or” an appeal may constitute a “prior occasion.” Id. In addition, the
“text provides that the relevant ‘occasion’ is the bringing of the action or

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appeal”—and a district court proceeding and subsequent appeal are
“necessarily ‘brought’ on two different occasions.” Taylor v. Grubbs, 930 F.3d
611, 623 (4th Cir. 2019) (Richardson, J., dissenting). And the Supreme Court
has noted that, when an action is “dismissed” in the district court, that
“linguistic term,” “taken alone, does not normally include subsequent appellate
activity.” Coleman, 135 S. Ct. at 1763.
      So an action in district court and a subsequent appeal of the district court
judgment are necessarily separate “occasions.” And there is no question that
the district court judgment under review here is a “prior” occasion, since it
necessarily precedes this appeal.           See, e.g., Prior, WEBSTER’S NEW
INTERNATIONAL DICTIONARY (2d ed. 1934) (“prior” means “preceding in the
order of time,” or “earlier, and therefore taking precedence”).
      To be sure, this case presents a slightly different factual situation than
Coleman. In both instances, the potential third strike arises from a district
court judgment that is pending on appeal. But in Coleman, the Court denied
IFP status to the prisoner in other cases during the pendency of that appeal.
This case, by contrast, involves IFP status in that very same appeal.
      The Supreme Court reserved judgment on the factual circumstances
presented here. Coleman, 135 S. Ct. at 1764–65. But the logic of the Court’s
textual analysis readily applies in these situations: 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
1763. And that is so whether we are applying the third strike analysis to an
entirely separate case (as in Coleman) or to the appeal of the same underlying
case (as here).
      Accordingly, I agree with the Third and Seventh Circuits that the PLRA
bars prisoners in Alexander’s position from proceeding IFP on appeal. See

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                                  No. 18-20278

Parker v. Montgomery Cty. Corr. Facility, 870 F.3d 144, 146 (3d Cir. 2017)
(denying IFP status under similar circumstances “based upon the plain text of
the statute, and guided by the Supreme Court’s reasoning in Coleman”);
Robinson v. Powell, 297 F.3d 540, 541 (7th Cir. 2002) (holding that authorizing
an IFP appeal in this situation was “contrary to the language of the statute”).
                                       III.
      A previous panel of this court reached the opposite conclusion.           In
Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996), we concluded that “[a]
dismissal should not count against a petitioner until he has exhausted or
waived his appeals.” Id. at 387. But that was decades before the Supreme
Court stated the opposite proposition in Coleman—namely, that “courts must
count the dismissal even though it remains pending on appeal.” 135 S. Ct. at
1761 (emphasis added).       See Gahagan v. U.S. Citizenship & Immigration
Servs., 911 F.3d 298, 302 (5th Cir. 2018) (“Fifth Circuit precedent is implicitly
overruled if a subsequent Supreme Court opinion ‘establishes a rule of law
inconsistent with’ that precedent.”) (quoting Gonzalez v. Thaler, 623 F.3d 222,
226 (5th Cir. 2010)).
      In addition, Adepegba relies on an absurdity argument that I find
unconvincing and insufficient to override statutory text. To begin with, the
panel in Adepegba acknowledged that “it is possible to read the statute” as I do
today—after all, “section 1915(g) only requires that on three or more prior
occasions a prisoner have had an action dismissed” as frivolous, and “does not
proscribe any cure for erroneous dismissals.” Adepegba, 103 F.3d at 387. The
panel nevertheless set aside the text, and refused to count the district court
judgment pending appeal as a strike, because it is “an extreme reading” and
“an absurd result we cannot believe Congress intended.” Id.


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      But it is hardly absurd for Congress to ignore what is undoubtedly the
rarest of occurrences—where a district court finds a prisoner claim so
unworthy as to be frivolous, and yet a court of appeals subsequently finds the
claim not only non-frivolous, but deserving of relief.       See, e.g., Brief for
Respondents at 48, Coleman v. Tollefson, 135 S. Ct. 1759 (2015) (No. 13-1333)
(“[P]robability-wise, [this is] likely to be a very small subset of cases.”). The
absurdity canon does not allow us to warp statutory text to accommodate
outlier circumstances. See Shady Grove Orthopedic Assocs., P.A. v. Allstate
Ins. Co., 559 U.S. 393, 414 n.13 (2010) (“The possible existence of a few outlier
instances does not prove [that an] interpretation is absurd.”); cf. RICHARD A.
EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD 38–39 (1995) (“Simple rules
. . . work most of the time, but are known and expected to fail some of the time,”
whereas “complex rules” are motivated by the “relentless, if naive, pursuit of
perfection.”).
      Moreover, the danger of this anomalous third strike is a “risk that falls
only on prisoners who have already demonstrated on three occasions a
propensity to abuse the judicial system.”        Brief for Respondents at 42,
Coleman. “There is nothing harsh”—much less absurd—“about subjecting
such a prisoner to consequences for that continued abuse.” Id. To the contrary,
it’s the whole point of the PLRA.
      Nor do I find persuasive the reasoning of the three circuits that depart
from the plain text interpretation adopted by the Third and Seventh Circuits.
      The Ninth Circuit, for example, relied primarily on language from the
Solicitor General’s brief in Coleman. See Richey v. Dahne, 807 F.3d 1202, 1204
(9th Cir. 2015). But its opinion never confronts the textual analysis adopted
by the Supreme Court in Coleman. Nor does it address the express textual
distinction between “actions” and “appeals” under 28 U.S.C. § 1915(g).

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Instead, the Ninth Circuit expressed policy concerns about “freez[ing] out
meritorious claims or ossify[ing] district court errors.” Richey, 807 F.3d at 1209
(quotations omitted). But statutory interpretation is an exercise in reading,
not writing. Federal courts are not permitted to recraft statutes to suit judicial
sensibilities. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 462 (2002)
(“We will not alter the text in order to satisfy [] policy preferences . . . . These
are battles that should be fought among the political branches and the
industry. Those parties should not seek to amend the statute by appeal to the
Judicial Branch.”).
      The Tenth Circuit likewise reached its conclusion without any textual
consideration. It simply relied on its own circuit precedent, decided before
Coleman, in a footnote in an unpublished opinion. See Dawson v. Coffman, 651
F. App’x 840, 842 n.2 (10th Cir. 2016).
      Finally, the Fourth Circuit (over a persuasive dissent by Judge
Richardson) justified IFP status under these circumstances largely based on
the surplusage canon. See Taylor, 930 F.3d at 617. The theory goes like this:
Under our reading, there is no difference between “prior occasion” and
“occasion”—after all, “a strike imposed on any occasion will always be ‘prior’ to
a court’s decision to grant or deny a motion to proceed in forma pauperis.” Id.
      But that misreads the statute. The statutory text states that courts must
count findings of frivolousness “prior” to “a prisoner bring[ing] a civil action or
appeal,” 28 U.S.C. § 1915(g)—not prior to “a court’s decision to grant or deny a
motion to proceed in forma pauperis,” as the Fourth Circuit panel majority
suggests, Taylor, 930 F.3d at 617. This distinction can make a difference in
certain (albeit rare) cases. Imagine the following situation: A prisoner has
accrued two strikes.     He files a new lawsuit and seeks IFP status.           He
subsequently receives a third strike in a previously filed action or appeal.

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                                        No. 18-20278

Would that third strike result in a denial of IFP status in the new pending
lawsuit? No: The third strike would be an “occasion” under the statute—but
not one “prior” to the “prisoner bring[ing] a civil action or appeal.” 28 U.S.C.
§ 1915(g).
       So contrary to the Fourth Circuit’s analysis, the word “prior” has
substantive meaning. The Third Circuit has reached the same conclusion. See
Parker, 870 F.3d at 153 (“In our view, the term ‘prior’ sets a temporal
parameter, referring only to strikes accrued earlier in time than the notice of
appeal. . . . Thus, in our view, ‘prior’ has meaning.”).2
                                              ***
       Serial filers of frivolous lawsuits do a disservice, not only to themselves
by wasting their IFP opportunities, but to all litigants who present worthwhile
claims before the courts. Since Magna Carta, a cardinal principle of Anglo-
American law is that justice will not be delayed. But consuming judicial
resources with meritless appeals crowds out those with legitimate claims to
redress.
       Congress recognized this problem and took remedial steps to fix it when
it enacted the PLRA. As judges, we are limited to interpreting statutes—not
rewriting them to suit our own preferences or sense of justice. And Congress
has made clear in the PLRA that prisoners may not proceed IFP on appeal



       2  Judge Richardson offers a different but powerful response to the majority’s reliance
on the surplusage canon. As he explains, “a court should not give a word an entirely fanciful
meaning to avoid a minor redundancy.” Taylor, 930 F.3d at 624 (Richardson, J., dissenting).
“Instead of misreading ‘prior,’ we should just admit that Congress used a redundant word.
That is hardly surprising: redundant uses of ‘prior’ abound.” Id. at 625. For example, he
noted that “the oft-used phrase ‘prior experience’ is usually redundant because almost all
experience is ‘prior.’” Id. “Even judicial opinions sometimes fall victim, for example by
referring to someone’s ‘prior history.’” Id. (collecting cases). “Similarly, courts often refer to
‘prior precedent’ even though precedent is, quite literally, that which ‘precedes.’” Id.
(collecting cases).
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                                No. 18-20278

following any three strikes, inclusive of the underlying district court action
under review. I respectfully concur.




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