Opinion analysis: Strike out

The country is anxiously awaiting many momentous Supreme Court decisions: Can the Trump administration abolish DACA? Is LGBT discrimination illegal under Title VII? And so on. But all we got this morning was a unanimous decision in Lomax v. Ortiz-Marquez, this term’s case about the hastily drafted and much-litigated 1996 Prison Litigation Reform Act. Not that the case doesn’t matter; it does, because it closes the courthouse door a little bit tighter against some prisoner litigants.

Under the PLRA’s “three strikes” provision, 28 U.S.C. § 1915(g), absent “imminent danger of serious physical injury,” prisoners may not file or appeal a federal civil action in forma pauperis if they have had three or more federal civil actions or appeals “dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] 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 issue in this case was what counts as a strike, and in particular (in the court’s own version of 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)?”

In a short and all-but unanimous decision by Justice Elena Kagan, peppered with baseball references, the court answered yes. (Justice Clarence Thomas declined to join footnote 4, discussed below.)

Kagan’s decision rested on two considerations. First, she wrote, “dismissed” is “broad language,” and courts should not “narrow a [statutory] provision’s reach by inserting words”—like “with prejudice”—that “Congress chose to omit.” Second, “‘[i]n all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning’ across a statute.” As Kagan explained, the PLRA has three screening provisions, each one referencing “dismiss[als]” for “fail[ure] to state a claim,” allowing such dismissals on the court’s own initiative. Both parties, and the United States as an amicus, agreed in this case that these provisions allow courts the ability to dismiss such suits without prejudice. Reading the three-strikes rule to apply only to dismissals with prejudice would require “dismissal” to “bear different meanings in provisions almost next-door to each other.”

At oral argument, several justices seemed taken by the idea that the law should not treat litigants differently depending on whether their complaint was dismissed with leave to amend or dismissed without prejudice, with leave to refile. Kagan herself emphasized the randomness of district judges’ choice between these two paths:

Maybe it just depends on the culture and practice of particular district courts. … Some of my clerks who have clerked on the D.C. District Court suggested to me that the incentives all cut in favor of dismissing without prejudice, rather than giving leave to amend, because of the way they count their docket. So, if that’s correct, if courts are doing this randomly or if some are subject to one set of incentives and others subject to an opposite set of incentives, but they’re all trying to do the same thing, which is to deal with a complaint that has not pled sufficient facts and telling the person go do it again, why should we treat those two cases differently for purposes of counting strikes?

Excellent vote-counter than I am, I commented, “With no questions at all from Justices Clarence Thomas, Stephen Breyer and Neil Gorsuch, this is a hard vote count. But if forced to bet, I’d say the transcript favors Lomax.”

So that was wrong. But the court did leave prisoner litigants the amendment route, writing in a footnote: “Note, however, that the [three-strike] provision does not apply when a court gives a plaintiff leave to amend his complaint. Courts often take that path if there is a chance that amendment can cure a deficient complaint.” Because over 90 percent of prisoner cases are pro se, filed by the prisoners themselves without counsel, few or no prisoner plaintiffs will know to ask courts to follow this route. So the choice between dismissal without prejudice and dismissal with leave to amend is likely to stay pretty random even after today’s clarification that the choice makes a difference. (Thomas did not join this note. Perhaps he did not want to reach this issue; maybe he feels that the court needs more than its one or two PLRA cases per term. Or, more likely, he disagrees, and feels that it is, indeed, odd to distinguish a dismissal without prejudice from a dismissal with leave to amend—and that both should therefore count as PLRA strikes.)

Two of Lomax’s prior dismissals were based on Heck v. Humphrey, which ruled that claims under 42 U.S.C. § 1983 challenging the validity of a conviction or sentence “do[] not accrue until the conviction or sentence has been invalidated.”But the court expressly left for another day the circuit split over whether a Heck dismissal incurs a PLRA strike.

The opinion concludes with a final baseball reference: “The text of the PLRA’s three-strikes provision makes this case an easy call.” And that’s the ball game.