UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ JOSHUA SIMONS, │ Plaintiff-Appellant, │ > No. 20-1406 │ v. │ │ HEIDI E. WASHINGTON, Director; MICHIGAN │ DEPARTMENT OF CORRECTIONS, │ Defendant-Appellee. │ │ ┘

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:20-cv-00170—Janet T. Neff, District Judge.

Argued: April 29, 2021

Decided and Filed: May 3, 2021

Before: SUTTON, Chief Judge; SUHRHEINRICH and SILER, Circuit Judges. _________________

COUNSEL ARGUED: Kathryn L. Wynbrandt, JENNER & BLOCK LLP, Washington, D.C., for Appellant. Zachary A. Zurek, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Amir H. Ali, Eliza J. McDuffie, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Washington, D.C., for Appellant. Zachary A. Zurek, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. No. 20-1406 Simons v. Washington, et al. Page 2

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OPINION _________________

SUTTON, Chief Judge. The Prison Litigation Reform Act establishes what has come to be known as the three-strikes rule. See 28 U.S.C. § 1915(g). A prisoner accrues a strike when he brings a frivolous lawsuit. After three strikes, the Act prohibits inmates from filing those lawsuits without paying the initial court fee for bringing them. At stake in this appeal is who makes the call about a strike and when.

Joshua Simons resides in the Bellamy Creek Correctional Facility located in Ionia, Michigan. During Simons’s incarceration, family and friends have sent about fifty dollars each month to Simons’s “Inmate Trust Account” to allow him to buy goods in the prison commissary. After Simons broke a prison window, prison officials removed money from his account to make repairs.

In February 2020, Simons filed a pro se complaint, targeting this seizure of funds as a violation of state and federal law.

Two months later, the district court issued an order allowing Simons to proceed in forma pauperis under 28 U.S.C. § 1915(b)(1), thereby permitting the gratis filing of this lawsuit. That same day, the district court screened Simons’s lawsuit as required by 28 U.S.C. § 1915A. The court rejected Simons’s federal claims on the merits, and it declined to exercise supplemental jurisdiction over Simons’s state law claims. Having conducted the required screening of Simons’s claims, the district court addressed whether the dismissal would count as a “strike” under 28 U.S.C. § 1915(g). The court ruled that it counted.

Simons appealed, training his sights on the court’s notation that the dismissal of his suit counts as a strike.

A litigant who files a lawsuit in federal court generally must pay a filing fee. See 28 U.S.C. § 1914(a). Insolvent litigants, including prisoners, may request permission to proceed without initially paying a filing fee, a benefit that comes with in forma pauperis status. See No. 20-1