Does a court’s dismissal without prejudice for failure to state a claim count towards a prisoner’s three strikes under 28 U.S.C. § 1915(g), which would ban him from filing future legal complaints without filing fees?
The Supreme Court will decide whether a dismissal without prejudice for failure to state a claim counts as a strike under 28 U.S.C. § 1915. Section 1915 contains a “three-strikes rule” holding a prisoner liable for litigation costs incurred when filing a civil lawsuit if the prisoner has had three or more prior civil lawsuits dismissed. Petitioner Arthur J. Lomax argues that a court’s dismissal of a complaint without prejudice does not count towards the three-strikes rule that would ban him from filing future legal complaints without filing fees. Lomax supports this argument by noting that dismissal without prejudice does not fall within the meaning of “dismissal” in 28 U.S.C. § 1915(g). Respondent Christina Ortiz-Marquez asserts that this type of dismissal does count towards the three-strike rule because the statute does not differentiate between dismissal with or without prejudice. The Court’s decision will affect a prisoner’s ability to bring civil actions while incarcerated.
Questions as Framed for the Court by the Parties
Whether a dismissal without prejudice for failure to state a claim counts as a strike under 28 U.S.C. 1915(g).
Petitioner, Arthur Lomax, is currently a prisoner at Limon Correctional Facility. Lomax v. Ortiz-Marquez at 2. Before being incarcerated at the Limon Facility, Lomax was incarcerated at the Centennial Correctional Facility in Colorado. Id. During his time at this facility, Lomax filed a complaint against the facility and a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, allowing him to bring a lawsuit without being liable for the costs incurred. Id. Prior to filing this motion, Lomax had filed three actions before the United States District Court for the District of Colorado (the “District Court”). Id. The District Court dismissed all of these previous actions. Id. The Court dismissed Lomax’s first and second action based on case law established in Heck v. Humphrey. Id. Heck held that a litigant cannot challenged a conviction’s legitimacy unless the conviction has been dismissed. Id. In Lomax’s third action, the District Court dismissed his claim without prejudice for lack of subject-matter jurisdiction as well as failure to state a claim. Id. at 3.
Pursuant to 28 U.S.C. § 1915(g), the District Court screened Lomax’s motion under the statute’s three-strike provision. Id. The three-strike provision states: “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 three 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 . . . unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The District Court that screened Lomax’s current complaint held that all three of Lomax’s previous claims counted towards the three-strike rule. Lomax v. Ortiz-Marquez at 3. Thus, the District Court held, Lomax had accumulated three strikes prior to the action in question and was now required to show cause before he could file in forma pauperis. Id. at 3.
In response, Lomax first asserted that dismissal of his previous complaints without prejudice (i.e., the case was dismissed but he was not legally barred from filing the case again) does not count as a strike under Section 1915(g). Id. Second, Lomax argued that even if the dismissals count as strikes, his case falls under the physical-injury exception of Section 1915(g). Id. Lomax asserted that he is under imminent danger of serious physical injury at Limon Correctional Facility because of how the guards treat him. Id. He claimed that the guards have physically attacked him and, in general, the guards were biased against him due to his sex-offender status. Id. The District Court rejected this argument, denied his motion for leave to proceed in forma pauperis, and required Lomax to pay a filing fee if he wished to proceed with his claim. Lomax v. Ortiz-Marquez at 4. Lomax appealed the District Court’s denial of his motion and pursued his claim without representation. Id.
The US Court of Appeals for the Tenth Circuit (the “Tenth Circuit”) held that motions denied without prejudice count as strikes under Section 1915(g). Id. at 5. The Tenth Circuit asserted that whether a motion was denied with or without prejudice is immaterial to the three-strike rule. Id. Thus, according to the Tenth Circuit, the District Court correctly found that Lomax had accumulated three strikes prior to his current complaint. Id. The Tenth Circuit also concluded that Lomax has not alleged sufficient, imminent danger to fall under Section 1915(g)’s exception. Id. at 7.
Following the Tenth Circuit’s opinion, Lomax petitioned the Supreme Court of the United States for a writ of certiorari to determine whether a dismissal without prejudice for failure to state a claim counts as a strike under Section 1915(g). Petition for Writ of Certiorari at 2. On October 18, 2019, the Supreme Court granted Lomax certiorari. Orders and Proceedings, 18-8369.
MEANING OF “DISMISSAL”
Petitioner Arthur Lomax argues that the Court should not read Section 1915(g) to include actions dismissed without prejudice for failure to state a claim because the PLRA’s text, structure, and purpose show that without-prejudice dismissals are not strikes. Brief for Petitioner, Arthur Lomax at 14. Lomax argues Section 1915(g)’s mandate that inmates may not qualify for in forma pauperis after three strikes does not include actions dismissed without prejudice because Section 1915’s purpose is to curtail abusive litigation by inmates that bring meritless actions. Id. In contrast, says Lomax, an action dismissed without prejudice does not speak to the action’s merits but rather a curable procedural defect. Id. at 12. Lomax also argues that Section 1915(g) incorporates a common legal phrase with an established meaning. Id. at 15. Lomax explains that the language of Section 1915(g) mimics that of Federal Rule of Civil Procedure 12(b)(6), which is a well-known concept allowing a defendant in a civil suit to file a motion to dismiss when the plaintiff “fail[s] to state a claim upon which relief can be granted.” Id. Lomax cites various Supreme Court cases, such as Federated Dep’t Stores v. Moitie and Ashcroft v. Iqbal, that have decided that dismissal for failure to state a claim under Rule 12(b)(6) typically is a determination on the merits that precludes the plaintiff from bringing the action again, even if the plaintiff improves the complaint. Id. at 15–16. Lomax explains, however, that a dismissal for failure to state a claim under Rule 12(b)(6) can have no claim-preclusive effect, but only when the court dismisses the claim without prejudice because the claim suffers a “temporary, curable, procedural flaw” that does not render the claim automatically meritless. Id. at 16 (citing Snider v. Melindez). According to Lomax, however, the Court must expressly state when a claim is dismissed without prejudice because the presumption is that dismissal for failure to state a claim is a final order that adjudicates the claim on its merits and with prejudice. Id. at 16–17. Therefore, Lomax states: “[I]t is a cardinal rule of statutory construction that, when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.” Id. at 17 (citing FAA v. Cooper). Section 1915(g)’s relevant language, namely “fails to state a claim upon which relief may be granted,” mirrors Rule 12(b)(6)’s well-known language and its well-established meaning, according to Lomax. Id. at 17–18. Lomax argues that because dismissal for failure to state a claim is read to be a judgment on the merits unless otherwise indicated, Section 1915(g)’s language should be read the same way. Id. at 18. Therefore, concludes Lomax, a dismissal for failure to state a claim should act as a judgment on the merits that precludes bringing a secondary claim, and thus act as a strike under Section 1915(g), unless the court explicitly specifies that it is dismissing the claim without prejudice so that the inmate has the opportunity to re-adjudicate the claim at a later date. Id.
Respondent Christina Ortiz-Marquez (“Ortiz-Marquez”) counters that Section 1915(g) covers all such dismissals including those without prejudice. Brief for Respondents, Christina Ortiz-Marquez et al. at 12. Ortiz-Marquez cites New Prime v. Oliveira for the proposition that words should be interpreted according to their plain and ordinary meaning to resolve statutory ambiguity. Id. Ortiz-Marquez argues that the plain text of the word “dismissal,” as evinced by Black’s Law Dictionary, encompasses both dismissals with prejudice and dismissals without prejudice. Id. at 13. Ortiz-Marquez then references various Circuit Court opinions, such as those from the Seventh, Eighth, and Ninth Circuits, that have looked to the plain meaning of the words in Section 1915(g) to determine that both dismissals with prejudice and dismissals without prejudice for failure to state a claim are meant to act as strikes under Section 1915(g). Id. at 13–14. Ortiz-Marquez agrees with Lomax that Section 1915(g) borrows the language of Federal Rule of Civil Procedure 12(b)(6). Id. at 15. But Ortiz-Marquez argues that Rule 12(b)(6) has a well-settled meaning that the dismissals can be with or without prejudice. Id. Ortiz-Marquez explains that Federal Rule of Civil Procedure 41(b) declares that dismissals for failure to state a claim under Rule 12(b)(6) are assumed to be made with prejudice but reserves the right for a court to specify when a dismissal is without prejudice. Id. at 15–16. Ortiz-Marquez argues that Rule 12(b)(6) includes both with-prejudice and without-prejudice dismissal, and just because Rule 12(b)(6) presumes that dismissals are made with prejudice unless specified otherwise, that presumption does not now exclude without-prejudice dismissals from the definition of “dismissal” under Rule 12(b)(6). Id. at 17. Therefore, argues Ortiz-Marquez, “the well-settled meaning of ‘dismissed for failure to state a claim’ provides further support for the conclusion that dismissals under Section 1915(g)—just like dismissals under Rule 12(b)(6)—include dismissals with and without prejudice.” Id.
STRUCTURE OF THE PLRA
Lomax next argues that the PLRA’s structure reinforces that dismissals without prejudice for failure to state a claim are not strikes under Section 1915(g). Brief for Petitioner at 20. Lomax cites Gen. Dynamics Land Sys. v. Cline for the proposition that statutory language must be read in context of the surrounding text to resolve statutory ambiguity. Id. Lomax argues that the neighboring text in Section 1915(g) and the PLRA’s overall structure indicate that dismissals for failure to state a claim are strikes under Section 1915(g) only if the claim was dismissed with prejudice. Id. at 20–21. Lomax notes the other two grounds for dismissal in Section 1915(g) are for “frivolous” or “malicious” actions. Id. at 20. Lomax argues that a frivolous claim is defined as one that “relies on an indisputably meritless legal theory” and that a malicious claim is defined as one that is “plainly abusive of the judicial process.” Id. at 21–22 (citing Taylor v. Johnson and Crisafi v. Holland). Both frivolous and malicious claims refer to actions that cannot succeed on their merits, according to Lomax. Id. at 22. Therefore, argues Lomax, it would be inconsistent to understand the third factor in Section 1915(g)—dismissal for failure to state a claim—to include claims that may be meritorious. Id. Thus, according to Lomax, dismissal for failure to state a claim cannot be read to include without-prejudice dismissals. Id. at 23. Next, Lomax argues that it is instructive to look at types of dismissals that Congress omits from Section 1915(g) but includes in other PLRA sections. Id. For example, Lomax looks to the PLRA’s sua sponte dismissal which is proper for claims that (1) are frivolous, malicious, or fail to state a claim; or (2) seek monetary relief from a defendant who is immune from such relief. Id. at 24. Lomax notes that immunity-based dismissals include dismissals that can only be made without prejudice because they are not based on the claim’s merits. Id. at 24–25. Therefore, argues Lomax, Congress would not intend to carefully exclude from Section 1915(g)—but include in other parts of the PLRA—all types of dismissals made without regard to the merits of the claim besides without-prejudice dismissals for failure to state a claim. Id. at 26.
Ortiz-Marquez counters that the PLRA’s structure actually reinforces that dismissals without prejudice for failure to state a claim are strikes under Section 1915(g). Brief for Respondents at 17. Ortiz-Marquez states that the other grounds for dismissal in Section 1915(g)—dismissals for frivolous or malicious actions—also include dismissals with and without prejudice. Id. Ortiz-Marquez agrees with Lomax that words are given more precise meaning by the meaning of other words that surround them. Id. at 18. But Ortiz-Marquez cites Denton v. Hernandez, decided before Congress enacted the PLRA, to point out that where the Supreme Court recognized that dismissing an inmate’s action for frivolousness can be made with prejudice and without prejudice. Id. Ortiz-Marquez also cites Pittman v. Moore where the Supreme Court dismissed an inmate’s action without prejudice for malice because the inmate filed duplicate allegations of another pending federal lawsuit. Id. at 19. Therefore, argues Ortiz-Marquez, because frivolous and malicious dismissals can be made without prejudice, Lomax’s “core claim”—that frivolous or malicious dismissals are always decided on the merits—falls apart. Id. at 20. Further, Ortiz-Marquez cites five times where the PLRA states that “dismissal for failure to state a claim upon which relief can be granted” is stated. Id. at 21. Ortiz-Marquez argues that interpreting every time this phrase arises in the PLRA as only encompassing dismissals with prejudice, the PLRA would create “unjust results,” such as dismissing claims permanently when the inmate has a legitimate claim but “poorly articulate[s]” or “unperfect[s]” because he is proceeding in forma pauperis. Id. at 23. Alternatively, says Ortiz-Marquez, interpreting this phrase differently in every part of the PLRA would be inconsistent and “at odds with fundamental rules of statutory interpretation.” Id. at 24.
LEGISLATIVE HISTORY OF THE PLRA
Lomax argues that the PLRA’s legislative history confirms that dismissals for failure to state a claim without prejudice are not strikes under Section 1915(g). Brief for Petitioner at 26. Lomax states that Congress adopted the PLRA’s three-strikes policy to disincentive inmates from filing “bad” claims and to facilitate consideration of the “good” claims. Id. at 27. Lomax cites testimony from Senator Dole and Senator Hatch, co-sponsors of the PLRA, to show that sponsors wanted the PLRA to deter “truly meritless and frivolous actions” but in no way “prevent inmates from raising legitimate claims.” Id. (citing Congressional Record Vol. 141, No. 152). Therefore, argues Lomax, treating dismissals without prejudice for failure to state a claim as strikes under Section 1915(g) is inconsistent with this legislative history that only meritless claims are to be penalized. Id. at 28.
Ortiz-Marquez counters that the PLRA’s legislative history supports Section 1915(g)’s plain meaning. Brief for Respondent at 29. Ortiz-Marquez argues that Congress never discusses or limits the meaning of “dismissal” anywhere in the PLRA’s legislative history. Id. Rather, says Ortiz-Marquez, Congress has only expressed intent to effectively limit inmates’ abuse of federal courts. Id. Ortiz-Marquez notes that Congress passed the PLRA not long after the Supreme Court decided Neitzke v. Williams, in which the Supreme Court actually suggested that sua sponte screening of inmates’ complaints and dismissing those complaints that fail to state a claim would effectively combat the challenges facing federal courts. Id. at 30. Ortiz-Marquez argues that Congress likely recognized and codified the Supreme Court’s suggestion from Neitzke in Section 1915(g). Id. Therefore, says Ortiz-Marquez, “it is hard to imagine Congress meant to create the authority for sua sponte dismissals but, at the same time, to place implicit limits on what counts as a strike under Section 1915(g).” Id.
PRESERVING DISADVANTAGED PRISONERS’ ACCESS TO COURTS VS. PREVENTING SERIAL PRISONER LITIGATION
In support of Arthur Lomax, The National Association of Criminal Defense Lawyers (“the Association”) alleges that if the Court holds in favor of Ortiz-Marquez, it will neuter judges’ equitable power to preserve prisoners’ ability to refile meritorious claims that were dismissed due to being improperly filed. Brief Amicus Curiae of National Association of Criminal Defense Lawyers, in support of Petitioner at 11. The Association explains that judges have the power to preserve prisoners’ access to courts due to judges’ ability to decide whether to dismiss a claim with or without prejudice. Id. at 9–10. The Association asserts that prisoner litigation is extremely complex and thus it is difficult for a prisoner to successfully file a complaint without a lawyer. Id. at 14. For example, the Association notes that courts have dismissed a significant number of prisoner lawsuits challenging their confinement conditions not because they lacked merit, but because prisoners filed them with procedural defects—such as filing a claim too early. Id. at 21. The Association maintains that it is well-established that prisoners may constitutionally assert their rights in court and that a technicality—such as filing a meritorious claim too early—should not revoke this right. Id. at 7. According to the Association, a holding in favor of Ortiz-Marques would increase the likelihood that indigent prisoners will reach their three-strikes limit due to procedural technicalities of which the prisoners were unaware. Id. at 16, 18. The Association explains that prisoners are often poorly-equipped to file an error-free complaint due to being unrepresented by counsel and having limited access to legal resources such as the internet, libraries, telephones, and even writing utensils and paper. Id. at 16. Identifying additional hurdles that indigent prisoners may face when filing a complaint, the Association notes that for many prisoners, English is not their first language. Id. at 13. Additionally, the Association notes, as of 1997 only 41% of prisoners had received their high school diploma or G.E.D., and as of 2005 more than half of prisoners suffer from some form of mental illness. Id. at 13–14.
The Council of State Governments, et al. (“the Council”), in support of Ortiz-Marquez, counters that Lomax and several of his amici do not cite specific examples to support their contention that if without-cause dismissals are considered strikes, a prisoner will file a meritorious lawsuit with a curable defect, counting as a third-strike and preventing the prisoner from re-filing the meritorious lawsuit. Amicus Brief of Council of State Governments et al., in support of Respondent at 16. The Council argues that Lomax and his amici’s lack of specific examples reveals that this concern is merely hypothetical, and at most, if such situations occur at all, they will be quite rare. Id. at 15–16.
The Council asserts that without-prejudice dismissals must count as strikes to preserve Section 1915’s ability to reduce serial prisoner litigation. Id. at 19. The Council notes that serial prisoner litigation is undesirable because it costs state and local governments millions of dollars to defend such meritless lawsuits. Id. at 16. For example, the Council notes that when Congress debated Section 1915’s passage in 1995, state and local governments had spent $95 million dollars defending meritless prisoner lawsuits. Id. at 16–17. The Council explains that during such debates, Congress cited numerous examples, including, two prisoners’ allegations of cruel and unusual punishment where one prisoner’s ice cream had melted and another was served chunky instead of smooth peanut butter. Id. at 16–17. It relies on the fact that because over 90% of all prisoners are in state or local prisons, state and local governments benefit the most from the PLRA’s reduction of prisoner lawsuits. Id. at 18–19. The Council notes that the PLRA reduced prisoner-civil rights or prisoner-mandumus lawsuits from 17.1% to 10.6% of all lawsuits filed. Id. at 17. The Council implies that this reduction in lawsuits has increased the overall percentage of meritorious prisoner lawsuits, noting that after the PLRA’s passage, prisoners have enjoyed a greater statistical likelihood of winning their prisoner civil-rights suits. Id. at 18.
- Molly Guptill Manning, Trouble Counting to Three: Circuit Splits and Confusion in Interpreting the Prison Litigation Reform Act’s “Three Strikes Rule,” 28 U.S.C. 1915(g), Cornell Journal of Law and Public Policy (2018).
- Kimberly Strawbridge Robinson, ‘Three-Strikes’ Rule for Prisoner Suits Gets SCOTUS Review, Bloomberg Law (Oct. 18, 2019).