The Court in a 9-0 decision clarified what the term dismissal means in the context of the Prison Litigation Reform Act of 1995 (PLRA) and its three-strikes rule. The short answer: a dismissal is just that, a dismissal, regardless of its prejudicial effect.
THE PLRA AND SECTION (g)
The PLRA was created after the federal courts were inundated with lawsuits filed by inmates and it was realized that many of those lawsuits were found to be frivolous, malicious, or failing to state a claim upon which relief may be granted. Lomax v. Ortiz-Marquez, et al, 509 U.S. ___ (2020) (slip op., at 1), citing Jones v. Bock, 549 U.S. 199, 203 (2007). To stem this tide, Congress enacted the PLRA, 28 USC Sec. 1915, et al. Within the PLRA is a three-strikes rule which, once reached, prevents an inmate from bringing suit as in forma pauperis (IFP) thereby avoiding paying up front the associated filing fees to begin a law suit. 28 USC §1915(g) (1996).
The key provision at issue in Lomax was Section (g) of the PLRA: an inmate is prevented from filing a claim if that inmate has had three or more prior suits “dismissed on the grounds” that they were “frivolous, malicious, or failed to state a claim upon which relief may be granted.” Id. The language for the Court to determine was whether this applies to all dismissed cases (dismissed with or without prejudice) or only those dismissed with prejudice. The Court, in applying a straight-forward statutory reading of the law, determined that it is the former.
BASIC FACTS
Colorado prison inmate Arthur Lomax filed suit against respondent prison officials challenging Lomax’s “expulsion from the facility’s sex-offender treatment program.” Lomax, 509 U.S. ___ , (2020) (slip op., at 1-2). Lomax moved for IFP status. Lomax had brought three prior unsuccessful legal actions, two of which were dismissed without prejudice. Lomax argued that for various reasons, cases dismissed without prejudice should not be included in the three-strike rule, thus allowing his case to move forward with IFP status. Id. (slip op., at 2). While the Tenth circuit disagreed and ruled against him holding that whether a dismissal was with or without prejudice is “immaterial to the strikes analysis,” other circuits hold the opposite. Id. The Court noted that the circuits were split on this issue, identifying the Tenth, Ninth, Eighth, and Seventh Circuits on one side and the Fourth and Third Circuits holding otherwise, namely, that dismissals without prejudice for failure to state a claim is not a strike. Id. (slip op., at 3 n.3).
COURT ANALYSIS
The Court applied a straight-forward reading of the statutory text to reach its holding. Noting that “a prisoner accrues a strike for any action ‘dismissed on the ground[] that it…fails to state a claim upon which relief may be granted,’” the Court held that the broad language provided includes all dismissals. Id. (slip op., at 3). The Court began its analysis by stating that this language “hinges exclusively on the basis for dismissal,” and that “the decision’s prejudicial effect” is inconsequential. Id. at 3-4. The Court explained that if it were to read the word “dismissed” more narrowly and to the exclusion of dismissals without prejudice, then the Court would be narrowing the “provision’s reach by inserting words Congress chose to omit.” Id. (slip op., at 4). The Court stated that it has no authority to make such a reach. Id.
To support its position of not overreaching its bounds, the Court explained that if it were to insert words that Congress chose to omit, this would violate “another rule of statutory construction: ‘In all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning’ across a statute.” Id., citing Cochise Consultancy, Inc. v. Unites States ex rel. Hunt, 587 U.S. ___, ___. (2019) (slip op., at 5). The Court noted three other provisions under the PLRA where the language (dismissal for failure to state a claim) presents itself. The Court then explained that those provisions do not limit the courts to dismiss only with prejudice; rather, the courts have “the ability to dismiss those suits without prejudice” as well. This allows the courts to decide whether a dismissal for failure to state a claim “should have preclusive effect.” Id. As such, to read the three-strikes rule to apply more narrowly and only to dismissals with prejudice “would introduce inconsistencies into the statute,” which the Court declined to embrace. Id.
WORTH MENTIONING
The Court did mention in a footnote that when a district court gives a plaintiff leave to amend his complaint, “the provision does not apply.” The Court explained that under FRCP 15(a), courts often take this route if it feels that an amended complaint would “cure a deficient complaint.” As such, “because the suit continues, the court’s action falls outside of Section 1915(g) and no strike accrues.” Id. (slip op., at 3 n.4). While Justice Thomas joined the majority opinion, he did so with the exception of this foothnote. Id. (slip op., at 1).
PRO BONO ATTORNEYS BEWARE
Many pro bono attorneys enlist to help represent pro se inmate litigants which inherently invokes the PLRA. When taking on such a case, it is important for the attorney to determine how many cases the client has filed in the past and the result of those filings.
If the client has only one or two cases dismissed with or without prejudice, then the case can proceed without threat that it would be dismissed for violating the three-strikes rule under Sec.1915(g).
On the other hand, if Sec. 1915(g) would preclude the case from proceeding because the inmate has three or more cases dismissed, then this needs to be explained to the client. Generally speaking, the client’s options are to either keep the case alive by paying the filing fee up front or to file a motion to dismiss without prejudice so that the law suit can later be filed once the filing fee is obtained.
Disclaimer: The above is provided for informational purposes only and is not intended to serve as legal advice. Seek legal advice only from an attorney. For any questions feel free to contact us.
