James Blakely v. Robert Ward

Filing

PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion denying Motion to reconsider [998693056-2] Originating case number: 4:10-cv-00718-RMG Paper copies to all parties and the district court/agency. [999002806]. [11-6945]

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PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES G. BLAKELY, a/k/a Jimmy G.
Blakely,
Plaintiff-Appellant,
v.
ROBERT WARDS, Regional Director;
MR. DAVID M. TATARSKY, General
Counsel Attorney; A. PADULA,
Warden; M. BELL, Associate
Warden; MAJOR DEAN; NURSE
MACDONALD, Head Nurse at Lee
Correctional; J. LIVINGTON,
Librarian; A. SMITH, Business
Office Manager at Lee
Correctional Institution; CHAPLAIN
T. EVANS; CHAPLAIN CAIN; MS.
SIMON, Mailroom Supervisor at
Lee Correctional; LT. JUNE,
Wateree Corr; MR. BAINOR,
Medical; MR. BIDDINGER, Cafteria
Supervisor; MS. TAYLOR, Canteen
Supervisor; MS. HANCOCK,
Commissionary Manager; JON
OZMINT, Director,
Defendants-Appellees.





No. 11-6945



Appeal from the United States District Court
for the District of South Carolina, at Florence.
Richard M. Gergel, District Judge.
(4:10-cv-00718-RMG)

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Argued: September 18, 2012
Decided: December 14, 2012
Before AGEE, WYNN, and FLOYD, Circuit Judges.

Motion for reconsideration denied by published opinion.
Judge Wynn wrote the opinion, in which Judge Agee and
Judge Floyd concurred.

COUNSEL
ARGUED: Frederick G. Hall, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Daniel Roy Settana, Jr., MCKAY, CAUTHEN, SETTANA &
STUBLEY, PA, Columbia, South Carolina, for Appellees.
ON BRIEF: Steven H. Goldblatt, Director, Doug Keller,
Supervising Attorney, Nilam A. Sanghvi, Supervising Attorney, Jina Moon, Student Counsel, Matthew T. Vaughan, Student Counsel, GEORGETOWN UNIVERSITY LAW
CENTER, Washington, D.C., for Appellant. Erin Farrell Farthing, MCKAY, CAUTHEN, SETTANA & STUBLEY, PA,
Columbia, South Carolina, for Appellees.

OPINION
WYNN, Circuit Judge:
With the Prisoner Litigation Reform Act, Congress sought
to reduce the number of frivolous lawsuits flooding the federal courts. Congress did so in part by enacting 28 U.S.C.
§ 1915(g), a "three-strikes" statute providing that if a prisoner
has had three prior cases dismissed as frivolous, malicious, or

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for failure to state a claim for which relief may be granted, the
prisoner generally may not proceed in forma pauperis but
rather must pay up-front all filing fees for his subsequent
suits.
Plaintiff James G. Blakely challenges this Court’s denial of
his attempt to proceed in forma pauperis on appeal. He contends that his prior actions dismissed as "frivolous, malicious,
or fail[ing] to state a claim" cannot count as strikes under Section 1915(g) because the dismissals occurred at summary
judgment. But neither precedent, nor the statute itself, nor
Congressional intent support Blakely’s contention. Instead,
we hold that the fact that an action was dismissed as frivolous,
malicious, or failing to state a claim, and not the case’s procedural posture at dismissal, determines whether the dismissal
constitutes a strike under Section 1915(g). Because Blakely
has had more than three prior cases dismissed (on summary
judgment) expressly as frivolous, malicious, or failing to state
a claim, we deny his motion for reconsideration.
I.
Blakely, a prisoner in a South Carolina correctional institution, has pursued over forty cases in federal district court, ten
appeals in this Court, and numerous suits in state court. In
2010, Blakely filed the underlying Section 1983 action
against Defendants, South Carolina officials including the
Director of the Department of Corrections and counsel for the
Department of Corrections, and "Lee Correctional Institution"
employees including the facility’s head nurse, librarian, and
chaplain. Blakely alleged various constitutional rights violations.
Defendants removed the case from state court to federal
district court and then moved for summary judgment. A magistrate judge issued a Report and Recommendation finding
that Blakely’s claims were meritless. The district court

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agreed, granted summary judgment in Defendants’ favor, and
dismissed the case. Blakely appealed to this Court.
To avoid having to pay the necessary appellate filing fees
up front, Blakely sought to proceed in forma pauperis ("IFP").
This Court initially denied Blakely’s application to proceed
IFP. After Blakely moved for reconsideration, this Court
assigned Blakely counsel and directed the parties to brief
whether certain previously-dismissed suits constitute "strikes"
under 28 U.S.C. § 1915(g), the Prisoner Litigation Reform
Act ("PLRA"), such that Blakely is barred from proceeding
IFP in his appeal. The merits of the underlying summary
judgment order are, therefore, not currently before us. Rather,
we consider only whether Blakely should be allowed to proceed IFP in his appeal of that order.
II.
Several of Blakely’s previously-dismissed suits were terminated at summary judgment. Blakely contends that such summary judgment dismissals, as a matter of law, cannot
constitute strikes under 28 U.S.C. § 1915(g). Specifically,
Blakely asserts that in Tolbert v. Stevenson, 635 F.3d 646 (4th
Cir. 2011), "this Circuit" established "a bright-line rule that a
case dismissed on summary judgment is not a strike under
§ 1915(g)." Appellant’s Br. at 19. We do not agree.
Whether a case dismissed at summary judgment may count
as a strike under Section 1915(g) is a question of law, which
we review de novo. Tolbert, 635 F.3d at 649. Applying that
standard of review, we observe that the critical section of the
PLRA at issue in Tolbert and this case 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 3 or more
prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of

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the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of serious physical
injury.
28 U.S.C. § 1915(g). In other words, if a prisoner has had
three prior cases dismissed as frivolous, malicious, or failing
to state a claim for which relief may be granted, the prisoner
generally must pay up-front all filing fees for his subsequent
suits.
In Tolbert, this Court considered whether the three–strikes
provision applies only to actions dismissed in their entirety as
frivolous, malicious, or failing to state a claim, or whether it
also applies to actions in which some, but not all, of the
claims were dismissed on those grounds. 635 F.3d at 647.
This Court held that "§ 1915(g) requires that a prisoner’s
entire ‘action or appeal’ be dismissed on enumerated grounds
in order to count as a strike." Id. at 651. Because Blakely does
not contend that his cases were dismissed only in part on the
enumerated grounds, Tolbert is not directly on point.
Further, in Tolbert, the Court was neither presented with,
nor did it address, the question of whether a dismissal on summary judgment expressly stating that the underlying suit "is
frivolous, malicious, or fails to state a claim" can constitute
a strike under Section 1915(g). Blakely correctly notes that
the Court in Tolbert stated that "a grant of summary judgment
to defendants also is not one of the grounds listed in
§ 1915(g), and therefore Lightsey also does not count as a
strike." Id. at 654. However, the summary judgment order at
issue in Lightsey, and thus in Tolbert, nowhere stated that the
pertinent suit was frivolous, malicious, or failed to state a
claim. Brief of Defendants-Appellees at ADD69-ADD71,
Tolbert, 635 F.3d 646 (No. 09-8051). Crucially, dismissed
suits count as strikes only when "dismissed on the grounds
that [they are] frivolous, malicious, or fail[ ] to state a claim

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upon which relief may be granted . . . ." 28 U.S.C. § 1915(g).
It follows, then, that the Lightsey summary judgment order
could not have counted as a strike. Indeed, most summary
judgment orders would likely not qualify as Section 1915(g)
strikes because, at that point, malice, frivolousness, and failure to state a claim are not usually addressed.
The only case cited in Tolbert to support the proposition
that the Lightsey summary judgment could not constitute a
strike for purposes of Section 1915(g) is Richardson v. Ray,
402 F. App’x 775 (4th Cir. 2010) (per curiam) (unpublished
and decided without oral argument). In Richardson, a oneparagraph-long opinion, this Court noted that:
[E]xamination of the district court’s order in Richardson v. Grizzard . . . and the subsequent appeal . . .
reveals that the action was dismissed on summary
judgment and that the appeal was dismissed for
being without merit. Because neither the action nor
the appeal was dismissed as frivolous, malicious, or
for failure to state a claim, neither should have
counted as a qualifying strike.
Id. at 776 (emphasis added). Significantly, the Court made
clear with the word "because" that the reason the summary
judgment dismissal did not constitute a strike was not its procedural posture but rather its failure to ring the PLRA bells of
frivolous, malicious, or failure to state a claim. Id.1
1

Blakely is not alone in his belief that summary judgment orders per se
cannot constitute strikes for PLRA purposes. 3 Rights of Prisoners § 17:35
(4th ed. 2011) states that "[s]ince the statute only counts dismissals for the
three specified reasons, dismissals for any other reason will not count as
a strike. Thus, a summary judgment dismissal would not count as a strike
. . . ." Notably, however, the case cited for that blanket proposition, Barela
v. Variz, 36 F. Supp. 2d 1254 (S.D. Cal. 1999), does not support that conclusion, but is instead much more nuanced. In Barela, the court refused
to deem actions previously dismissed on summary judgment strikes
because "none of these claims were, strictly speaking, terminated because

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The same cannot be said here. Among the previouslydismissed suits the Court directed Blakely to address in this
proceeding are four summary judgment orders that contain, as
Blakely concedes, "language characterizing the summary
judgment dismissal[s] as [ ] strike[s] because [they] ‘qualifie[d] as a dismissal on the grounds that [they are] ‘frivolous,
malicious, or fail[ ] to state a claim upon which relief may be
granted.”" Appellant’s Br. at 20-21. Specifically, the orders at
issue state that the actions: should "be considered [ ]
‘strike[s]’ for purposes of the ‘three strikes’ rule set forth in
28 U.S.C. § 1915(g)" because they are "‘frivolous, malicious,
or fail[ ] to state a claim upon which relief may be granted[,]’"
J.A. 210; and "qualif[y] as [ ] dismissal[s] on the grounds that
[they are] ‘frivolous, malicious, or fail[ ] to state a claim upon
which relief may be granted’" and thus are properly "classif[ied] as [ ] strikes . . . ." J.A. 246, 262, 299.
Blakely would have this Court ignore what he characterizes
as "boilerplate" language. Appellant’s Br. at 20. He fails,
however, to offer any compelling reason why this Court
should overlook the plain language in the pertinent orders
written by the judges most familiar with his suits.
Blakely proffers a judicial economy argument, maintaining
that courts "should [not] attempt to discern the bases upon
which a case was dismissed at summary judgment to deterthey were frivolous, malicious, or failed to state a claim." Id. at 1259. The
court went on to explain that one suit was dismissed at summary judgment
"after extensive litigation and a successful appeal by Plaintiff to the Ninth
Circuit." Id. Another was dismissed on summary judgment because
"Plaintiff failed to present sufficient evidence to survive summary judgment." Id. And the third and final summary judgment order was dismissed
for failure to state a claim only as to one of multiple defendants. The court
"f[ound] it unfair to penalize Plaintiff for including a defendant against
whom he could not state a cause of action." Id. In other words, the Barela
court, too, focused on whether the earlier cases were dismissed because
they were frivolous, malicious, or failed to state a claim and not on the
procedural posture at dismissal.

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mine if it is a strike." Reply Br. at 5. This Court shared Blakely’s concern in Tolbert, where we noted that "requir[ing]
district courts to [ ] parse summary judgment orders and their
supporting documents" to determine if the orders constituted
strikes "would even further increase their workload, again
straying far afield of the purpose of the PLRA." Tolbert, 635
F.3d at 653 n.7. But the plain language of the four summary
judgment dismissals at issue here belies any such concern.
Those orders plainly state on their face that Blakely’s actions
were frivolous, malicious, or failed to state a claim, i.e., that
those actions met the statutory criteria for strikes. We fail to
see why it would be more difficult for a court to look at the
face of a summary judgment order, as opposed to the face of
some other dismissal order, to determine whether a specific
finding of frivolousness, maliciousness, or failure to state a
claim was made.
Blakely further looks to Thompson v. Drug Enforcement
Administration, 492 F.3d 428 (D.C. Cir. 2007), which was
also cited in Richardson, for support. But Thompson does not
further Blakely’s cause. Contrary to Blakely’s suggestion, in
Thompson, the D.C. Circuit did not unequivocally hold that
any dismissal at summary judgment cannot constitute a strike
under Section 1915(g). Rather, the D.C. Circuit, analyzing
whether a dismissal for failure to exhaust administrative remedies would count as a strike, observed:
With regard to exhaustion, both section 1915(g)’s
text and our desire for clarity point toward the same
rule: if the court dismisses an unexhausted complaint
on a Rule 12(b)(6) motion or if it dismisses the complaint sua sponte and expressly declares that the
complaint fails to state a claim, the dismissal counts
as a strike. But if the court dismisses the complaint
on some other procedural mechanism, such as a Rule
12(b)(1) motion or a motion for summary judgment,
the dismissal will not count as a strike.

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Id. at 438. The D.C. Circuit went on to emphasize that the language of a dismissal order, rather than the particular procedural stage at which an action is dismissed, controls the
question of whether a dismissal constitutes a strike under Section 1915(g). See id.
It makes sense that the D.C. Circuit and this Court would
not have focused on the procedural posture of an action at the
time of dismissal to determine whether the dismissal counts
as a strike. That is because Section 1915(g) does not differentiate amongst dismissals but instead simply states that if a
prisoner has brought three or more actions or appeals "dismissed on the grounds that [they were] frivolous, malicious,
or fail[ed] to state a claim[,]" that prisoner generally may not
proceed IFP. 28 U.S.C. § 1915(g).
"In interpreting statutory language, words are generally
given their common and ordinary meaning." Nat’l Coal. For
Students With Disabilities Educ. & Legal Def. Fund v. Allen,
152 F.3d 283, 288 (4th Cir. 1998) (quotation marks omitted).
"We customarily turn to dictionaries for help in determining
whether a word in a statute has a plain or common meaning."
Id. at 289. According to Black’s Law Dictionary, "dismiss"
means "to terminate (an action or claim) without further hearing, esp. before the trial of the issues involved." Black’s Law
Dictionary 482 (7th ed. 1999).
There is some argument, particularly in the legal academy,
that summary judgment orders should not be called dismissals. See, e.g., Bradley Scott Shannon, A Summary Judgment
Is Not a Dismissal!, 56 Drake L. Rev. 1 (2007). Nothing
before us, however, indicates that Congress had that academic
distinction in mind in drafting Section 1915(g), and certainly
courts do not follow such a rule—as reflected in both Tolbert
and Thompson, in which this Court and the D.C. Circuit refer
to disposition upon summary judgment as a dismissal. Tolbert, 635 F.3d at 654; Thompson, 492 F.3d at 438. Even
Blakely refers to the summary judgment orders at issue here

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as dismissals: In his brief, Blakely argues, for example, that
his "prior cases that were dismissed on summary judgment are
not strikes" and that "a case dismissed on summary judgment
is not a strike . . . ." Appellant’s Br. at i (emphasis added).
The fact that Section 1915(g) counts not only dismissed
actions but also dismissed appeals as strikes underscores that
strikes are not limited, as Blakely seems to suggest, to cases
dismissed via Civil Procedure Rule 12(b)(6). If only Rule
12(b)(6) dismissals could constitute strikes, dismissed
appeals, subject not to the Federal Rules of Civil Procedure
but rather to the Federal Rules of Appellate Procedure, would
never count as strikes. Moreover, if only Rule 12(b)(6) dismissals could constitute strikes, all strikes would be for failure
to state a claim upon which relief may be granted. See Fed.
R. Civ. P. 12(b)(6). Such a reading would render superfluous
Section 1915(g)’s express statement that cases dismissed as
frivolous or malicious also constitute strikes—a result we
must avoid. See Discover Bank v. Vaden, 396 F.3d 366, 369
(4th Cir. 2005) ("It is a classic canon of statutory construction
that courts must ‘give effect to every provision and word in
a statute and avoid any interpretation that may render statutory terms meaningless or superfluous.’" (quoting United
States v. Ryan-Webster, 353 F.3d 353, 366 (4th Cir. 2003))).
And it makes sense that frivolity and maliciousness may not
be cognizable at the Rule 12(b)(6) stage, before any discovery
has been conducted.2
Our broader understanding of "dismiss" comports with the
D.C. Circuit’s discussion in Thompson, in which the D.C. Cir2

Blakely’s Americans with Disabilities Act ("ADA") claim is a fine
example of how a successfully stated claim may ultimately prove frivolous. Although Blakely’s complaint theoretically could have successfully
stated a claim for which relief might have been granted (in reality it did
not, according to the district court), Blakely ultimately "failed to prove
that he is disabled . . . ." J.A. 208. Making an ADA claim without being
disabled surely supports a frivolity determination and certainly supported
the district court’s decision that that dismissal counted as a strike.

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cuit explained that the word "dismiss" in Section 1915(g) is
"most plausibly understood as a reference to section
1915(e)(2), which requires the court to ‘dismiss the case at
any time if the court determines that . . . the action or appeal
. . . is frivolous or malicious; [or] fails to state a claim on
which relief may be granted.’ 28 U.S.C. § 1915(e)(2)." 492
F.3d at 436 (emphasis altered).
Further, our focus on the grounds for dismissal rather than
the procedural posture at the time of dismissal dovetails with
the Congressional intent underpinning the PLRA. "The impetus behind the enactment of the PLRA was a concern about
the ‘endless flood of frivolous litigation’ brought by inmates."
McLean v. United States, 566 F.3d 391, 397 (4th Cir. 2009)
(quoting 141 Cong. Rec. S14,418 (1995)). "To accomplish its
goal of reducing the number of frivolous lawsuits, the PLRA
placed three major hurdles in the path of prisoners seeking to
challenge the conditions of their confinement." Green v.
Young, 454 F.3d 405, 406-07 (4th Cir. 2006). One of those
hurdles is the three-strikes provision at issue here, requiring
"pre-payment in full of all filing fees if the plaintiff-prisoner
has had three prior cases dismissed as frivolous, malicious, or
for failure to state a claim for which relief may be granted,
unless the prisoner is at imminent risk of serious physical
injury." Id. at 407 (emphasis omitted). It would subvert the
PLRA’s very purpose to restrict the dismissals that can count
as strikes when cases dismissed on summary judgment may
also be dismissed for frivolousness, maliciousness, and failure
to state a claim. And this we must avoid. See De Osorio v.
INS, 10 F.3d 1034, 1043 (4th Cir. 1993) ("the overriding duty
of a court is to give effect to the intent of the legislature").
In sum, we hold that if a summary judgment order states on
its face that the district court considered the statutory criteria
for a strike to have been met, then the summary judgment dismissal should count as a strike. Because here, at least four
summary judgment orders stated that Blakely’s suits were
frivolous, malicious, or failed to state a claim for which relief

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could be granted, i.e., that Blakely’s suits met Section
1915(g)’s strike criteria, those orders count as strikes and bar
Blakely from proceeding IFP on appeal.3
III.
For the foregoing reasons, Blakely’s motion for reconsideration is denied.
DENIED

3

Blakely also makes various arguments as to why certain other orders
should not be counted as strikes. Because our holding regarding the four
summary judgment orders puts Blakely over Section 1915(g)’s threestrikes threshold, we need not, and therefore do not, address Blakely’s
other arguments and orders.