Argument preview: Calling (PLRA) strikes

In 1996, Congress passed the Prison Litigation Reform Act, which tightened up prisoners’ access to federal civil litigation in many ways. The statute was written hurriedly, and rarely does a year go by without a Supreme Court decision addressing some issue of its interpretation. This term’s case is about the PLRA’s “three strikes” provision, 28 U.S.C. § 1915(g). Absent “imminent danger of serious physical injury,” the provision prevents prisoners from filing or appealing a federal civil action in forma pauperis if they have had three or more federal civil actions or appeals dismissed as “frivolous, malicious, or fail[ing] to state a claim.” (For prisoners, IFP status does not waive the filing fee, but rather allows them to pay fees over time, after filing.)

The question in Lomax v. Ortiz-Marquez, to be argued February 26, is what counts as a strike. The lawsuit is the fourth federal action brought by Arthur Lomax, a Colorado prisoner. He lost each of the prior three; the issue now is whether he will be allowed to pursue this one (which alleges that he was unlawfully expelled from a sex-offender treatment program) without prepaying a $400 district court filing fee he cannot afford.

Lomax’s third case was dismissed with prejudice (meaning that Lomax is prohibited from bringing the claim again), in part for failure to state a claim and in part for lack of subject matter jurisdiction. Dismissals for lack of subject matter jurisdiction alone are not PLRA strikes, and as it happens, there’s a circuit split about whether this kind of mixed dismissal counts as a strike. But that’s not before the court here. This case involves the dismissals of Lomax’s first two cases, which occurred under Heck v. Humphrey. Heck sets out a ripeness principle: “[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Heck dismissals are typically entered without prejudice, and this was done in Lomax’s cases. But the U.S. Court of Appeals for the 10th Circuit upheld the district court’s denial of IFP status in this fourth case, holding that the prior Heck dismissals counted as PLRA strikes.

Lomax filed his case, appeal and cert petition pro se, but acquired experienced appellate counsel prior to his cert reply. He and the respondents, Colorado prison officials represented by the state solicitor general, agreed in their cert papers that there is a circuit split about what makes a dismissal a PLRA strike, and in particular whether a dismissal without prejudice is a strike. Nonetheless, in the cert papers, the issue was framed more narrowly: whether Heck dismissals, in particular, are PLRA strikes when entered without prejudice. But in its order granting cert, the court rewrote the question presented: “Does a dismissal without prejudice for failure to state a claim count as a strike under 28 U.S.C. §1915(g)?”

On the merits, Lomax argues that the PLRA’s text, structure and purposes all point in his favor. He underscores that lots of dismissals (those based on sovereign immunity, failure to prosecute, lack of jurisdiction, abstention doctrines) are not PLRA strikes. Lomax maintains that a remediable error—one that justifies dismissal without prejudice—is more akin to those nonstrikes than to merits dismissals of suits that are frivolous, malicious or fail to state a claim. He emphasizes that if a dismissal without prejudice is a strike, even meritorious cases (refiled and litigated to conclusion) could foreclose subsequent access to courts for a prisoner without the means to prepay filing fees.

An amicus brief filed by the MacArthur Justice Center at Northwestern Pritzker School of Law makes the additional argument that any Heck dismissal—whether with or without prejudice—fails to meet the statutory definition of a strike (unless the case was frivolous or malicious) because it is a not a dismissal for failure to state a claim, but rather a dismissal on ripeness grounds. The MacArthur brief acknowledges that the court’s rewritten question presented suggests that a Heck dismissal is a dismissal for failure to state a claim, but urges the court to reserve this question for a case in which it is fully briefed.

For its part, Colorado puts forth a plain text argument: “[D]ismissal for failure to state a claim” covers both dismissals with and without prejudice. Congress, says Colorado, easily could have used the words “with prejudice” to limit what constitutes a PLRA strike. But it did not. Moreover, dismissal for failure to state a claim should be understood to mean the same thing under the PLRA and Federal Rule of Civil Procedure 12(b)(6). Rule 41(b), which covers Rule 12(b)(6) dismissals, effects a presumption that a dismissal “operates as an adjudication on the merits”—that is, is with prejudice—“unless the dismissal order states otherwise.” According to Colorado, this implies that a Rule 12(b)(6) dismissal for failure to state a claim can, in appropriate circumstances, be without prejudice. Finally, the state argues that no great injustice results from this approach, because prisoners are given chances to fix problems in their pleadings prior to dismissal, even when that dismissal is without prejudice.

An amicus brief filed by the Council of State Governments in support of the respondents emphasizes that the court’s interpretation of the three-strikes provision also will determine the appropriate interpretation of 28 U.S.C. § 1915A and § 1915(e)(2)(B)(ii), which instruct district courts to screen prisoner filings and dismiss them if, among other things, they are frivolous, malicious or fail to state a claim. Surely, the council argues, the PLRA’s screening regime authorizes Heck and other nonmerits dismissals. And surely, Congress did not intend to rule out the “benevolence” of a dismissal without prejudice—but if a dismissal without prejudice does not count as a dismissal for failure to state a claim, then the kinder disposition would be unavailable. An amicus brief by 30 states (red, blue and purple) documents the continuing burden on states caused by prisoner lawsuits, notwithstanding the drastic decline in such filings brought about by the PLRA.

All in all, this is a pretty technical set of arguments, and the court may end up regretting its rewritten question, which does seem to assume (prior to briefing on the merits) that Heck dismissals “fail[] to state a claim.” But it’s certainly available to the court to address the prejudice/without-prejudice issue and not the strike status of Heck dismissals.

It’s likely that the oral argument and opinion will stay firmly focused on the text of the statute. The court has several times emphasized that the PLRA should not be overread. The statute poses significant hurdles to prisoner lawsuits, but the court has insisted that extra-textual hurdles not be added to the textual ones. In Jones v. Bock, for example, the court pushed back against several rules imposed by the U.S. Court of Appeals for the 6th Circuit to define what it means to “properly exhaust” prison grievance procedures, as the PLRA requires. The statute, Jones insisted, authorizes prisons—but not courts—to decide the rules for proper exhaustion. Similarly, in Ross v. Blake, the court read the PLRA’s statement that “such administrative remedies as are available [must be] exhausted” to compel exceptions to the exhaustion requirement when grievance remedies are not available.

But as with so many textual arguments, it’s hard to predict which side the court will find more appealing.