High Court Should Affirm 3-Strikes Rule For Prisoner Pleading

By GianCarlo Canaparo | November 17, 2019, 8:02 PM EST

GianCarlo Canaparo
GianCarlo Canaparo
On Oct. 19, the U.S. Supreme Court agreed to hear Lomax v. Ortiz-Marquez,[1] which presents the question whether a dismissal without prejudice for failure to state a claim counts as a strike under U.S. Code Title 28, Section 1915(g).[2] The Supreme Court should hold that it does; to hold otherwise will incentivize district courts to restrict how freely they grant leave to amend complaints.

Section 1915(g) bars a prisoner from bringing a civil action in forma pauperis — free from the requirement that he pay filing fees — if he has:

on 3 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 on the grounds that it ... fails to state a claim upon which relief may be granted.

Because many prisoners cannot pay filing fees, the effect of the statute is to bar the courthouse doors to indigent prisoners who repeatedly file meritless cases.

The petitioner, Arthur Lomax, is a prisoner who filed three civil lawsuits in federal courts before the present lawsuit. All three lawsuits were dismissed, but two were dismissed without prejudice. The district court in the present suit ruled that all three dismissals counted as strikes under Section 1915(g) and denied Lomax leave to proceed in forma pauperis.

Lomax appealed arguing that only dismissals with prejudice counted as strikes, but the U.S. Court of Appeals for the Tenth Circuit affirmed, holding that the plain text of Section 1915(g) encompassed dismissals both with and without prejudice.

Presently, the U.S. Courts of Appeals for the Fifth,[3] Seventh,[4] Eighth,[5] Ninth,[6] Tenth,[7] and Eleventh[8] Circuits hold that a dismissal without prejudice counts as a strike for the purposes of Section 1915(g). Only the Third[9] and Fourth[10] Circuits require that the dismissal be with prejudice.

This may seem like an esoteric case, but federal district judges will be watching closely because it carries significant implications for their dockets. Civil litigators should also pay close attention because a decision in Lomax’s favor might make district judges less willing to grant leave to amend complaints in all types of cases.

On first glance, it appears that if the Supreme Court held that a dismissal without prejudice was a strike, indigent prisoners would have their access to the courts significantly curtailed. In truth, however, it likely won’t matter how the court interprets the statute; district courts have an incentive to hand out strikes one way or another.

Some litigants, especially prisoners who have a lot of time on their hands, file scores of lawsuits. Lawsuits filed by prisoners accounted for 18.5%[11] of all civil cases filed in federal court during the 12-month period ending June 30.

No data shows exactly how many of these cases are frivolous, but an overwhelming majority[12] of these cases are “terminated” (to use the jargon of the Administrative Office of the Courts) by the court — not the parties themselves as in the case of a settlement — before trial. Additionally, an exhaustive report of prisoner civil rights cases produced by the Federal Judicial Center[13] concluded that most of those cases “are frivolous and ought to be dismissed under even the most liberal definition of frivolity.”

Eager to clear frivolous prisoner cases off their dockets, district court judges have invented a somewhat unique procedure for them: immediate dismissal without prejudice and without leave to amend coupled with administrative closure of the case.[14]

Prisoner petitions often do not meet the pleading requirements of Federal Rule of Civil Procedure 8, and are subject to dismissal. That dismissal, however, will almost always be without prejudice because every circuit court of appeals requires district courts to give plaintiffs at least one (and, in the case of pro se plaintiffs, often more than one) chance to cure inartful pleading before dismissing with prejudice.

District court judges know, however, that oftentimes no number of amendments will cure the deficiencies in in forma pauperis complaints. So instead of letting these cases languish on their dockets while the plaintiffs amend a sufficient number of times that the judge can finally dismiss with prejudice, district judges often dismiss without prejudice and immediately close the case.

This has the effect of requiring the plaintiff to file a new lawsuit if he wants to pursue the same claim. It also counts as a strike for the purpose of Section 1915(g) because the dismissal coupled with an administrative closure effects a dismissal of the action, not just the complaint. In that way, an in forma pauperis prisoner can rack up three strikes very quickly.

You might argue that it’s not fair that prisoners can so easily lose the ability to proceed in forma pauperis in future cases and so argue that dismissal with prejudice should be required for a strike. In truth, it’s not likely to matter either way.

A decision in Lomax’s favor will not disabuse district judges of their well-founded belief that prisoner lawsuits are overwhelmingly frivolous. They will still dismiss them all the same, but, mindful of the potential deluge of cases that a loosening of Section 1915(g) could cause, they will be incentivized to let prisoners amend frivolous complaints once or twice and then dismiss them with prejudice.

The prisoner will earn a strike either way, the only difference is that whereas under the dismiss-and-close approach his case may last a week, under the grant-leave-to-amend approach it might last a month.

Not only is this not an effective way to preserve prisoners’ ability to proceed in forma pauperis, it sets a bad incentive for district judges. District court dockets will swell somewhat with frivolous cases awaiting a round or two of pro forma amendment before an inevitable dismissal with prejudice. Eager to get rid of these cases, district judges — especially those who work aggressively to reduce their caseloads — will be incentivized to limit the number of chances they give litigants to amend before dismissing with prejudice. Where two to four chances might have been standard, one may quickly become the norm.

What’s more, if that aggressiveness is affirmed on appeal, there is no reason to think that district courts will limit that timesaving practice to prisoner petitions. One or two chances to amend could become the new norm in all cases. After all, as the U.S. Court of Appeals for the Sixth Circuit has explained, “[Pro se] complaints are held to less stringent standards than formal pleadings drafted by lawyers.”[15]

The best outcome in Lomax v. Ortiz-Marquez, therefore, is for the Supreme Court to affirm the Tenth Circuit and hold that the plain text of Section 1915(g) controls: Any dismissal for failure to state a claim should count as a strike. The outcome for prisoner litigants will likely be the same either way, but a decision in Lomax’s favor gives district judges a bad incentive to adopt a restrictive policy toward amending complaints.

If we are concerned that Section 1915(g) denies access to the courts for indigent prisoners, then the appropriate response is to lobby Congress to change it. Supreme Court intervention will have no positive effect.



GianCarlo Canaparo is a legal fellow at The Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies and a former associate at Skadden Arps Slate Meagher & Flom LLP.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] https://www.scotusblog.com/case-files/cases/lomax-v-ortiz-marquez/.

[2] https://www.law.cornell.edu/uscode/text/28/1915.

[3] Patton v. Jefferson Correctional Center , 136 F.3d 458 (5th Cir. 1998).

[4] Paul v. Marberry , 658 F.3d 702 (7th Cir. 2011).

[5] Orr v. Clements , 688 F.3d 463 (8th Cir. 2012).

[6] O’Neal v. Price , 531 F.3d 1146 (9th Cir. 2008).

[7] Lomax v. Ortiz-Marquez , 754 F. App’x. 756 (10th Cir. 2018).

[8] Rivera v. Allin , 144 F.3d 719 (11th Cir. 1998).

[9] Millhouse v. Heath , 866 F.3d 152 (3rd Cir. 2017).

[10] McLean v. United States , 566 F.3d 391 (4th Cir. 2009).

[11] See United States Courts, U.S. District Courts-Combined Civil and Criminal Federal Court Management Statistics (June 30, 2019), available at https://www.uscourts.gov/statistics/table/na/federal-court-management-statistics/2019/06/30-1.

[12] See United States Courts, U.S. District Courts-Civil Statistical Tables for the Federal Judiciary (June 30, 2019), available at https://www.uscourts.gov/statistics/table/c-4/statistical-tables-federal-judiciary/2019/06/30.

[13] Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in Federal Courts, Jan. 1980, available at https://www.fjc.gov/sites/default/files/2012/PrisCivR.pdf.

[14] See, e.g., Watkins v. Miller , No. 18-14165, 2019 WL 3246508 (11th Cir. July 19, 2019) (affirming such a dismissal).

[15] Gordon v. England , 354 F. App’x. 975, 981 (6th Cir. 2009).