James Blakely v. Robert Ward

Filing

AMENDING ORDER/OPINION filed [999223960] amending and superseding Published Authored Opinion [999221875-2]. Originating case number: 4:10-cv-00718-RMG Copies to all parties.. [11-6945]

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Filed:

October 22, 2013

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6945
(4:10-cv-00718-RMG)

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.

O R D E R

The Court amends its opinion filed October 21, 2013,
as follows:
On page 28, line 7 -- the citation to “maj. op. at 56” is corrected to read “maj. op. at 5”; on page 35, section
III., second paragraph, line 5 -- the citation to “dissenting
op. at 53-55” is corrected to read “dissenting op. at 53-54”; on
page 36, lines 5-6 -- the citation to “dissenting op. at 54-55”

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is corrected to read “dissenting op. at 53-54”; on page 37,
footnote *, line 4 -- the citation to “dissenting op. at 56” is
corrected to read “dissenting op. at 55” and on line 9 -- “id.”
is corrected to read “id. at 56”.
On page 52, footnote 2, line 1 -- the citation “ante
at 27” is corrected to read “ante at 26”; on page 54, footnote
3, line 3 -- the citation “Ante at 36” is corrected to read
“Ante at 35”; on page 56, footnote 4 carry-over, line 3, the
citation “Id. at 27” is corrected to read “Id. at 26” and on
line 5 “id. at 31-36” is corrected to read “id. at 30-35”

For the Court – By Direction

/s/ Patricia S. Connor
Clerk

2

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ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6945

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.

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)

Argued:

May 16, 2013

Decided:

October 21, 2013

Before WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN,
AGEE, DAVIS, KEENAN, WYNN, DIAZ, FLOYD, and THACKER, Circuit
Judges.

Motion for reconsideration denied by published opinion.
Judge
Wynn wrote the majority opinion, in which Judges Wilkinson,

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Niemeyer, Shedd, Agee, Keenan, Diaz, and Floyd joined.
Judge
Wilkinson wrote a separate concurring opinion, in which Judges
Niemeyer, Keenan, and Diaz joined.
Judge Duncan wrote a
separate opinion concurring in the judgment. Judge Motz wrote a
dissenting opinion, in which Judges King, Davis, and Thacker
joined, and in which Judge Gregory joined as to Part I.
Judge
Gregory wrote a separate dissenting opinion.

ARGUED: Nilam Ajit Sanghvi, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant.
Daniel Roy Settana, Jr.,
MCKAY, CAUTHEN, SETTANA and STUBLEY, P.A., Columbia, South
Carolina, for Appellees.
ON BRIEF: Steven H. Goldblatt,
Director, Doug Keller, 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 and STUBLEY, P.A.,
Columbia, South Carolina, for Appellees.

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WYNN, Circuit Judge:
With the Prisoner Litigation Reform Act (“PLRA”), 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 already had three cases dismissed as frivolous, malicious,
or 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.
contends

that

malicious,

or

his

prior

fail[ing]

actions

to

state

dismissed
a

claim”

as

He

“frivolous,

cannot

count

as

strikes under Section 1915(g) because these dismissals occurred
at

summary

judgment.

But

neither

the

precedent supports Blakely’s contention.

statute

itself

nor

Rather, 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

expressly

as

claim,

we

cases

failing

to

dismissed
state

a

reconsideration.

3

frivolous,
deny

his

malicious,

or

motion

for

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I.
Blakely,

a

prisoner

in

a

South

Carolina

correctional

institution, has pursued numerous lawsuits in federal and state
courts,

including

Blakely

filed

multiple

the

appeals

underlying

in

this

Section

Court.

1983

In

action

2010,

against

Defendants, including South Carolina officials such as counsel
for

the

Department

Institution”

employees

chaplain.

Blakely

of

Corrections

such

as

alleged

the

and

“Lee

facility’s

various

Correctional
librarian

constitutional

and

rights

violations.
Defendants removed the case from state court to federal
court.

A magistrate judge issued a Report and Recommendation

deeming Blakely’s claims meritless.

The district court 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.

This

Court initially denied Blakely’s application to proceed in forma
pauperis.
assigned
whether

After Blakely moved for reconsideration, this Court
Blakely

certain

counsel

and

directed

previously-dismissed

the

suits

parties

to

constitute

brief

strikes

under the PLRA such that Blakely is barred from proceeding in
forma pauperis on appeal.

The merits of the underlying summary

judgment are, therefore, not currently before us.

4

Rather, we

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consider only whether Blakely should be allowed to proceed in
forma pauperis on appeal. 1

II.
A.
Several
terminated
summary

at

of

Blakely’s

summary

judgment

previously-dismissed

judgment.

dismissals,

Blakely

as

a

contends

matter

of

constitute strikes under 28 U.S.C. § 1915(g).
question of law de novo.

suits

were

that

law,

such

cannot

We review this

Tolbert v. Stevenson, 635 F.3d 646,

649 (4th Cir. 2011).
The section of the PLRA at issue here, known as the threestrikes provision, states:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding
under this [in forma pauperis] 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 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) (emphasis added).
prisoner

has

had

three

prior

cases

1

In other words, if a
dismissed

as

frivolous,

Because this Court specifically asked Blakely’s counsel to
address whether certain orders constitute strikes, we similarly
restrict the subject of our analysis here.

5

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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.
Here,

Blakely

terminated

at

has

had

summary

more

judgment

than

expressly

malicious, or failing to state a claim.
appeal

is

the

meaning

of

the

three

word

prior

as

cases

frivolous,

At the heart of this

“dismiss”

and

whether

a

summary judgment disposing of an action as frivolous, malicious,
or failing to state a claim “dismisses” the action such that it
constitutes a strike under Section 1915(g).
To interpret statutory language such as Section 1915(g)’s
“dismissed,”

we

begin

our

analysis

with

the

plain

language.

Salomon Forex, Inc. v. Tauber, 8 F.3d 966, 975 (4th Cir. 1993).
“In arriving at the plain meaning, we . . . assume that the
legislature used words that meant what it intended; that all
words had a purpose and were meant to be read consistently; and
that the statute’s true meaning provides a rational response to
the relevant situation.”

Id.

In beginning with the language itself, “[w]e customarily
turn to dictionaries for help in determining whether a word in a
statute

has

a

plain

or

common

meaning.”

Nat’l

Coal.

for

Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152
F.3d 283, 289 (4th Cir. 1998).
“dismiss”

means

“to

terminate

Doing so here reveals that
(an

6

action

or

claim)

without

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further hearing, esp. before the trial of the issues involved.”
Black’s Law Dictionary 482 (7th ed. 1999).
American

Heritage

Dictionary

520

(4th

ed.

See also, e.g., The
2009)

(“To

put

(a

claim or action) out of court without further hearing.”).
Summary

judgments

can

do

precisely

terminate cases without a trial.

that:

They

can

See Black’s Law Dictionary

1573 (9th ed. 2009) (“A judgment granted on a claim or defense
about which there is no genuine issue of material fact and upon
which the movant is entitled to prevail as a matter of law. . .
. This procedural device allows for the speedy disposition of a
controversy without the need for trial.”).

As this Court has

noted, the purpose of “[s]ummary judgment is to avoid a useless
trial.

It is a device to make possible the prompt disposition

of controversies . . . if in essence there is no real dispute as
to the salient facts.”

Bland v. Norfolk & S. R.R. Co., 406 F.2d

863, 866 (4th Cir. 1969).
Not surprisingly, then, courts—including the Supreme Court,
this

Court,

and

the

D.C.

Circuit—routinely

judgments terminating actions dismissals.
Thompson,

545

U.S.

794,

798

(2005)

call

summary

See, e.g., Bell v.

(characterizing

summary

judgment as having “dismissed the habeas petition”); Union Labor
Life Ins. Co. v. Pireno, 458 U.S. 119, 124 (1982) (stating that
“the

District

Court

granted

petitioners’

motion

for

summary

judgment dismissing respondent’s complaint”); Poller v. Columbia

7

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Broad.

Sys.,

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Inc.,

368

U.S.

Pg: 10 of 62

464,

465

(1962)

(referring

to

summary judgment as “summary judgment of dismissal”); Tolbert,
635 F.3d at 654 (noting that “claims against certain defendants
were

dismissed

upon

a

motion

for

judgment

on

the

pleadings,

while claims against other defendants were later dismissed on
summary

judgment”);

Thompson

v.

Drug

Enforcement

Admin.,

492

F.3d 428, 438 (D.C. Cir. 2007) (characterizing summary judgment
as a “procedural mechanism” through which a “court dismisses the
complaint”).
Even Blakely refers to the summary judgments at issue here
as

dismissals.

In

his

appellate

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.

There is some argument, particularly in the legal academy,
that summary judgments should not be called dismissals.
e.g.,

Bradley

Scott

Shannon,

A

Summary

Dismissal!, 56 Drake L. Rev. 1 (2007).

Judgment

Is

See,
Not

a

But nothing before us

indicates that Congress had any such distinction in mind when it
drafted Section 1915(g).
Beyond the word “dismiss,” looking at Section 1915 as a
whole convinces us that Congress did not seek to curtail courts’
authority to dispose of frivolous, malicious, or failed claims
at summary judgment by using the word “dismiss.”

8

As the D.C.

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Circuit noted in Thompson, 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).”

F.3d at 436 (emphasis altered).

492

Logically, if a court must

dismiss such a case at any time, it may do so at any procedural
posture, including summary judgment.
Further, per Section 1915(a)—a general provision predating
the PLRA—a court “may authorize,” i.e., has the discretion to
allow, the commencement of a suit without prepayment of fees.
28

U.S.C.

§

1915(a)

(“[A]ny

court

of

the

United

States

may

authorize the commencement, prosecution or defense of any suit,
action

or

proceeding,

civil

or

criminal,

or

appeal

therein,

without prepayment of fees or security therefor . . . .”).

We

agree with the D.C. Circuit that “our authority to deny IFP
status to a prisoner who has abused the privilege is clear. . .
.”

Butler v. Dep’t of Justice, 492 F.3d 440, 445 (D.C. Cir.

2007) (noting that the Supreme Court went “so far as to say that
courts have ‘a duty to deny in forma pauperis status to those
individuals who have abussed the system’” in In re Sindram, 498
U.S. 177 (1991) (per curiam)).

9

Thus, under Section 1915(a),

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Congress vested in courts the authority to decide whether to
grant in forma pauperis status. 2
By contrast, Section 1915(g) in no way speaks to courts’
authority, and certainly does not limit it.

Instead, Section

1915(g) limits prisoners’ authority—their authority to proceed
in forma pauperis after having three prior suits dismissed as
frivolous,

malicious,

U.S.C. § 1915(g).

or

for

failing

to

state

a

claim.

28

Thus, Section 1915(g) is a limitation on

prisoners’ rights, not on courts’ authority.

Viewing Section

1915(g) as a whole with Section 1915(a) and Section 1915(e)(2),
we cannot escape the conclusion that by using the word “dismiss”
in Section 1915(g), Congress did not limit courts’ ability to
dismiss

suits

at

summary

judgment

for

frivolousness,

maliciousness, or failure to state a claim.
Our
the

understanding

legislative

behind

the

‘endless
McLean

v.

intent

enactment

flood

of

United

of

“dismiss”

underpinning
of

the

frivolous
States,

566

PLRA

dovetails
the
was

PLRA.
a

litigation’
F.3d

seamlessly

391,

(quoting 141 Cong. Rec. S14, 418 (1995)).

“The

concern

brought
397

by

(4th

with

impetus

about

the

inmates.”
Cir.

2009)

“To accomplish its

goal of reducing the number of frivolous lawsuits,” Congress
2

We leave for another day the question of what standard
should apply in determining how such discretion should be
exercised.

10

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imposed

on

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prisoners,

among

Pg: 13 of 62

other

hurdles,

limitation to proceeding in forma pauperis.
F.3d 405, 406-07 (4th Cir. 2006).

the

three-strikes

Green v. Young, 454

It would subvert the PLRA’s

very purpose to prevent cases dismissed on summary judgment from
counting as strikes even when those cases were expressly deemed
frivolous, malicious, or failing to state a claim.
must avoid.
1993)

And this we

See De Osorio v. INS, 10 F.3d 1034, 1043 (4th Cir.

(stating

“‘the

overriding

duty

of

a

court

is

to

give

effect to the intent of the legislature’”).
Therefore,

in

keeping

with

Section

1915(g)’s

plain

language, we hold that a summary judgment dismissal stating on
its face that the dismissed action was frivolous, malicious, or
failed to state a claim counts as a strike for purposes of the
PLRA’s three-strikes provision. 3
B.
Blakely nevertheless asserts that in Tolbert, 635 F.3d 646,
“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. 4

3

Whether a court rings the PLRA bell in its opinion or
judgment order is immaterial, so long as the summary judgment
dismissal is explicitly predicated on one of the three grounds
enumerated in Section 1915(g).
4

Blakely is not alone in his belief that summary judgment
orders per se cannot constitute strikes for PLRA purposes.
3
(Continued)
11

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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, claims were
dismissed on those grounds.

635 F.3d at 647.

We held that Ҥ

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’s
main holding is not on point.

Michael B. Mushlin, Rights of Prisoners § 17:35 (4th ed. 2009),
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), is much more nuanced than the treatise
suggests.
In Barela, the court refused to deem actions
previously dismissed on summary judgment strikes because “none
of these claims were, strictly speaking, terminated because they
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 terminated because they were frivolous,
malicious, or failed to state a claim and not on the procedural
posture at termination.

12

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Tolbert did not present this Court with the question now
before

us—that

expressly

is,

stating

whether

that

a

the

summary

underlying

judgment
suit

“is

dismissal
frivolous,

malicious, or fails to state a claim” can constitute a strike
under Section 1915(g).

As Blakely notes, the Court in Tolbert

did state 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 Lightsey summary judgment at issue in Tolbert did
not expressly state that the suit was frivolous, malicious, or
failed

to

state

a

claim.

Brief

of

Defendants-Appellees

ADD69-ADD71, Tolbert, 635 F.3d 646 (No. 09-8051).

at

Crucially,

dismissed suits count as strikes only when “dismissed on the
grounds that [they are] frivolous, malicious, or fail[] to state
a claim upon which relief may be granted . . . .”
1915(g).
could

28 U.S.C. §

It follows, then, that the Lightsey summary judgment

not

have

counted

as

a

strike.

Indeed,

most

summary

judgment dismissals likely would not qualify as Section 1915(g)
strikes

because,

at

that

point,

frivolousness,

maliciousness,

and failure to state a claim are not typically addressed.
Further, by the time the Court reached the Lightsey summary
judgment in Tolbert, the Court had already held that the other
two dismissals at issue did not count as strikes.
654.

Accordingly,

the

Court’s

13

statement

about

635 F.3d at
the

Lightsey

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summary judgment was irrelevant to the outcome of the Tolbert
three strikes analysis, i.e., it was mere dictum.
55.

Id. at 654-

Moreover, even if the statement were not inapposite dictum

but instead an on-point holding (it is not), we would have the
authority

to

overrule

it

sitting

en

banc

here.

See,

e.g.,

McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (en
banc) (noting that published panel opinions may be “overruled by
an intervening opinion from this court sitting en banc or the
Supreme Court”).
Blakely also looks to Richardson v. Ray, 402 F. App’x 775
(4th

Cir.

2010)

(unpublished),

which

this

Court

cited

in

Tolbert, to support his argument that a summary judgment cannot
constitute a strike.

In Richardson, 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
clear

776
with

judgment

(emphasis

added).

Significantly,

the

“because”

that

word

dismissal

did

not

constitute

the
a

the

reason
strike

Court
the

was

made

summary
not

its

procedural posture but rather its failure to ring the PLRA bells
of frivolous, malicious, or failure to state a claim.

14

Id.

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Blakely also draws our attention to Everett v. Whaley, 504
F. App’x 245 (4th Cir. 2013) (unpublished).

In Everett, we held

that this Court’s affirmance of a lower court’s dismissal did
not qualify as a strike.

Id.

Notably, we so held not because

an affirmance per se cannot constitute a dismissal, but because
the affirmance did not turn on an explicit determination that
“the appeal was malicious or frivolous.”

Id. at 246.

In other

words, we looked to the contents of the disposition and not
merely

to

the

procedural

posture.

Id.

Everett

is

thus

consistent with, and indeed supports, our holding here.
Blakely attempts to raise the specter of a circuit split,
claiming

that

allowing

a

summary

judgment

dismissal

of

an

expressly frivolous or malicious action would conflict with the
D.C.

Circuit’s

decision

in

Thompson,

the

Third

Circuit’s

decision in Byrd v. Shannon, 715 F.3d 117 (3d Cir. 2013), and
the Sixth Circuit’s decision in Taylor v. First Med. Mgmt., 508
F.

App’x

488

(6th

Cir.

2012).

But

contrary

to

Blakely’s

assertion, those cases bolster, rather than conflict with, our
resolution of this case.
The

D.C.

Circuit

did

not

hold

in

Thompson

that

summary

judgment dismissals cannot qualify as strikes even when they
expressly

state

that

the

dismissed

malicious, or failed to state a claim.

suit

was

frivolous,

Quite the opposite:

The

Court clarified that what matters for three-strikes purposes is

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not what a court calls a disposition, but instead whether that
disposition states on its face that the disposed-of action met
one of the three criteria for a strike.
436.

Thompson, 492 F.3d at

The court noted:
To be sure, we can easily imagine a case in which
an appellate court expressly states that an appeal was
frivolous but erroneously styles its disposition as an
affirmance rather than as a dismissal.
In such a
case, we expect that the reviewing court would regard
the earlier disposition as a constructive dismissal
under section 1915(e)(2) and, therefore, as a strike.
. . .
Appellate affirmances [thus] do not count as
strikes unless the court expressly states that the
appeal itself was frivolous, malicious or failed to
state a claim.

Thompson, 492 F.3d at 436, 440 (emphasis added).
Similarly, in Taylor, the Sixth Circuit put the focus on a
disposition’s contents, and not its procedural posture.

The

Sixth Circuit noted that an affirmance does not constitute a
strike “when the original appellate court declined to implicate
§ 1915(g) reasons[,]” necessarily implying that an affirmance is
not per se a non-strike because it is not, strictly speaking, a
dismissal.

Taylor, 508 F. App’x at 494.

The court held that an

appellate decision “affirm[ing] the district court’s denial of
the motion for a new trial” did not count as a strike because
the “language of the opinion does not indicate that the court
found the appeal to be frivolous.”

Id. (emphasis added).

The Third Circuit’s Byrd decision, too, accords fully with
our holding here by focusing not on the procedural posture at

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dismissal

but

bells

frivolous,

of

rather

on

Pg: 19 of 62

whether

malicious,

the
or

dismissal

failure

to

rang

the

state

a

PLRA

claim.

Specifically, the Third Circuit held that
a strike under § 1915(g) will accrue only if the
entire action or appeal is (1) dismissed explicitly
because it is “frivolous,” “malicious,” or “fails to
state a claim” or (2) dismissed pursuant to a
statutory provision or rule that is limited solely to
dismissals for such reasons, including (but not
necessarily limited to) 28 U.S.C. §§ 1915A(b)(1),
1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule 12(b)(6)
of the Federal Rules of Civil Procedure.
Byrd, 715 F.3d at 126.

With the first prong of its strike test,

the Third Circuit left no doubt that courts must look not only
at the procedural mechanism for dismissing a case, but also at
the

face

of

the

dismissal

to

see

if

the

dismissing

court

explicitly deemed the action frivolous, malicious, or failing to
state a claim.
This

Id.

Court

Tolbert.

upon

has

There,

entirety,

That is precisely what we are doing here.

we
a

advocated
stated

motion

such

that

for

a

an

approach

case

judgment

before—in

“dismissed,

on

the

in

its

pleadings

for

failure to state a claim”—that is, pursuant to Civil Procedure
Rule 12(c)—“would constitute a strike . . . .”

Tolbert, 635

F.3d at 654 n.9.

Notably, Civil Procedure Rule 12(c) includes

neither

dismiss

the

word

nor

the

words

“failure

to

state

a

claim,” and a Rule 12(c) dismissal may be based on grounds other
than frivolousness, maliciousness, and failure to state a claim.
See Fed.

R.

Civ.

P.

12(c).

If

17

a

Rule

12(c)

dismissal

can

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nevertheless constitute a strike—and we made plain in Tolbert
that it can—it defies logic to suggest that a summary judgment
dismissal, even if granted on the same basis, cannot. 5
C.
Turning, then, to the summary judgment dismissals at issue
here, we must determine whether they explicitly state that the
terminated actions were “dismissed on the grounds that [they
were]

frivolous,

malicious,

or

fail[]

which relief may be granted . . . .”

to

state

a

claim

upon

28 U.S.C. § 1915(g).

The four pertinent summary judgment dismissals contain, as
Blakely concedes, “language characterizing the summary judgment
dismissal[s]

as

[]

strike[s]

because

.

.

.

[they

are]

‘frivolous, malicious, or fail[] to state a claim upon which
relief

may

be

granted.’”

Appellant’s

Br.

at

20-21.

Specifically, they state in relevant part that each respective
action: should “be considered a ‘strike’ for purposes of the
‘three strikes’ rule set forth in 28 U.S.C. § 1915(g).
court

holds

that

this

case

qualifies

as

a

dismissal

This
on

the

grounds that it is ‘frivolous, malicious, or fail[] to state a

5

“Of course a summary-judgment motion” too “may be made on
the basis of the pleadings alone, and if this is done it
functionally is the same as a motion to dismiss for failure to
state a claim or for a judgment on the pleadings.” 10A Wright &
Miller, Federal Practice & Procedure § 2713 (3d ed. 2013)
(footnotes omitted).

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claim

upon

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which

relief

may

Pg: 21 of 62

be

granted[,]’”

J.A.

210;

and

“qualifies as a dismissal on the grounds that it is ‘frivolous,
malicious, or fails to state a claim upon which relief may be
granted’” and thus is properly “classif[ied] as a strike for
purposes of 28 U.S.C. § 1915(g).”
Blakely
dismissals.

invites

us

But

window

the

to

J.A. 246, 262, 299.

reopen
for

these

summary

challenging

the

judgment

dismissals,

which hail from 1999 and 2000, has long since closed, and they
are, therefore, final.
(4th Cir. 2012).

Cf. Henslee v. Keller, 681 F.3d 538, 541

We agree with the D.C. Circuit:

“IFP motions

present no occasion for relitigating final judgments.

Thus,

even though a court may believe that a previous court erred . .
., all that matters for the purpose of counting strikes is what
the earlier court actually did, not what it ought to have done.”
Thompson, 492 F.3d at 438-39.

See also, e.g., Smith v. Veterans

Admin., 636 F.3d 1306, 1313 n.3 (10th Cir.), cert. denied, 132
S. Ct. 381 (2011) (same).
each

dismissal

action

simply

explicitly

“on

to

Accordingly, we look at the face of
determine

the

grounds

whether
that

it
it

terminated
is

an

frivolous,

malicious, or fails to state a claim upon which relief may be
granted . . . .”

28 U.S.C. § 1915(g).

All four summary judgment dismissals explicitly state (with
some minor, immaterial variation) that the “case qualifies as a
dismissal on the grounds that it is ‘frivolous, malicious, or

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fails to state a claim upon which relief may be granted.’”
210.

J.A.

This language essentially mirrors Section 1915(g), stating

that an action or appeal “dismissed on the grounds that it is
frivolous,
relief

malicious,

may

1915(g).

be

or

granted”

fails

to

state

constitutes

a

a

claim

strike.

upon

28

which

U.S.C.

§

This language is determinative, and Blakely’s summary

judgments thus count as strikes.
Again

relying

on

Tolbert,

Blakely

maintains

that

courts

“should [not] attempt to discern the bases upon which a case was
dismissed at summary judgment to determine if it is a strike.”
Reply

Br.

at

5.

And

this

Court

shared

Blakely’s

judicial

economy concern in Tolbert, in which we noted that “requir[ing]
district courts to [] parse summary judgment orders and their
supporting
strikes

documents”

“would

even

to

determine

further

if

increase

the

orders

their

constituted

workload,

straying far afield of the purpose of the PLRA.”

again

Tolbert, 635

F.3d at 653 n.7.
However, the plain language of the four summary judgment
dismissals

at

issue

here

belies

any

such

concern.

These

dismissals explicitly state on their face that Blakely’s actions
were frivolous, malicious, or failed to state a claim.

We fail

to see why it would be more difficult for a court to look at the
face of a summary judgment dismissal, as opposed to the face of
some

other

dismissal,

to

see

whether

20

there

was

an

explicit

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determination that a dismissed action or appeal was frivolous,
malicious, or failed to state a claim. 6

Moreover, we agree with

the Third Circuit that looking to the face of a dismissal to see
whether “the terms ‘frivolous,’ ‘malicious,’ or ‘fails to state
a claim’ were . . . used” is easily applied and “does not open
the door to more litigation surrounding § 1915(g).”
F.3d at 126.

Byrd, 715

In other words, the bright-line approach we adopt

today will help “preserve the resources of both the courts and
the defendants in prisoner litigation.”

Thompson, 492 F.3d at

438. 7

6

There is no discernable difference between looking at the
face of a summary judgment dismissal to see if it was granted
for failure to state a claim and looking at a judgment on the
pleadings to see if it was granted for that same exact reason.
Neither task requires parsing; rather, both entail simply
reading the pertinent judgments issued under rules with texts
that do not include the word “dismiss.” Compare Fed. R. Civ. P.
12(c) with Fed. R. Civ. P. 56(a).
Tolbert expressly embraced
this approach as applied to judgments on the pleadings.
635
F.3d at 654 n.9. Refusing to do precisely the same thing in the
summary judgment context defies logic.
7

The dissenting opinion suggests that looking at the face
of summary judgment dismissals will require “time-intensive”
inquiries and thus increase the burden on the courts.
Post at
49.
Yet under the dissenting opinion’s logic, litigants are
free to file suits endlessly and with impunity so long as
earlier suits that were terminated as frivolous, malicious, or
for failing to state a claim were disposed of through a
procedural mechanism other than Civil Procedure Rule 12(b)(6).
That is surely not what Congress intended when it enacted
Section 1915(g), and it surely will not lighten courts’ loads.

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Accordingly, we hold that if a summary judgment dismissal
explicitly deems the terminated action frivolous, malicious, or
failing to state a claim, then the summary judgment dismissal
counts as a strike for Section 1915(g) purposes. 8

Because here,

four summary judgment dismissals expressly stated that Blakely’s
suits were dismissed on the grounds that they were frivolous,
malicious, or failed to state a claim for which relief could be
granted,

those

dismissals

constitute

strikes

and

bar

Blakely

from proceeding in forma pauperis on appeal. 9

III.
The nub of the majority’s and dissent’s disagreement is the
term dismiss.

The dissenting opinion suggests that “dismiss”

has a “well-established legal meaning.”

See post at 46.

Yet

while the dissent calls this “a lesson learned in the first year
of law school,” the dissenting opinion fails to articulate what
that “well-established legal meaning” is.

Id. at 45-46.

8

Inasmuch as Blakely accrued three qualifying strikes in
the context of summary judgment, we confine our opinion to
summary judgment dismissals.
9

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 dismissals puts
Blakely over Section 1915(g)’s three-strikes threshold, we need
not, and therefore do not, address those other orders.

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At times the dissent seems to suggest that Civil Procedure
Rule 12(b) is at the root of all “actual dismissals.”
47.

Id. at

Yet notably absent from Rule 12(b) is the word “dismiss”—

let alone any indication that Rule 12(b) constitutes the sine
qua non for actual dismissals.

Fed. R. Civ. P. 12(b).

This failure to define the “well-established” term dismiss
causes considerable confusion.
dismissal?

Is a judgment on the pleadings a

In Tolbert, a unanimous panel writing for this Court

certainly indicated that it is.

655 F.3d at 654 n.9.

11 sanction of dismissal an “actual dismissal”?
are

the

many

courts

that

have

styled

Rule

Is a Rule

Post at 47.
11

sanctions

Or
as

“dismissals” also simply “overbroad” and “imprecise” in their
use of that term? 10

Post at 45.

The dissenting opinion cites to a collection of cases in A
Jailhouse Lawyer’s Manual to support its contention that a case
resolved on summary judgment is not “dismissed” and thus does
not constitute a strike—a point allegedly so obvious that courts
“simply have assumed as much.”

Post at 44.

But that source

also cites to a case on all fours with our contrary view.

In

Davis v. Kakani, CIV.A. 06-13704, 2007 WL 2221402 (E.D. Mich.

10

See, e.g., Jimenez v. Madison Area Technical Coll., 321
F.3d 652 (7th Cir. 2003); Green v. Dorrell, 969 F.2d 915 (10th
Cir. 1992); Combs v. Rockwell Int’l Corp., 927 F.2d 486 (9th
Cir. 1991).

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July 31, 2007), the court deemed a summary judgment dismissal
for

failure

to

state

a

claim

a

strike

for

Section

1915(g)

purposes, noting:
Although such a [summary judgment] dismissal does not
seem
to
fall
into
the
category
of
qualifying
dismissals under section 1915(g), a review of the
Magistrate Judge’s Report and Recommendation shows
that the court found that Plaintiff had failed to
state a claim upon which relief could be granted. . .
. Accordingly, this dismissal was based on Plaintiff’s
failure to state a claim for relief and therefore
qualifies as Plaintiff’s third strike.
2007 WL 2221402, at *2.
Even more telling is the D.C. Circuit’s willingness to deem
an appellate court’s affirmance a dismissal in Thompson.

The

D.C. Circuit made plain that it would view an affirmance “in
which an appellate court expressly states that an appeal was
frivolous” as a “constructive dismissal” “and, therefore, as a
strike.”

Thompson,

492

F.3d

at

436.

Following

the

D.C.

Circuit’s logic in Thompson inescapably leads to the conclusion
that a summary judgment dismissal stating that the matter is
dismissed

as

frivolous,

like

an

appellate

affirmance

stating

precisely the same thing, is a dismissal and strike.
Ultimately, the dissenting opinion takes the position that
with

Section

1915(g),

Congress

was

more

concerned

with

the

procedural mechanism for terminating cases that are frivolous,
malicious, or fail to state a claim than the substantive reality
that those cases were in fact terminated on the grounds that

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were

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frivolous,

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malicious,

or

failed

to

state

a

claim.

With this, we cannot agree.
Section

1915(g)

as

Congress

passed

it,

the

legislative

intent underpinning it, and the precedent interpreting it all
convince us that an action’s dismissal as frivolous, malicious,
or

failing

posture

to

at

state

a

dismissal,

constitutes a strike.
prior

cases

claim,

and

not

determines

the

case’s

whether

the

procedural
dismissal

Because Blakely has had more than three

dismissed

at

summary

judgment

expressly

as

frivolous, malicious, or failing to state a claim, we deny his
motion for reconsideration.

IV.
For

the

foregoing

reasons,

Blakely’s

motion

for

reconsideration is denied.
DENIED

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WILKINSON, Circuit Judge, concurring:
I

agree

fully

with

the

majority’s

reasons

for

denying

Blakely’s application to proceed IFP, namely that at least three
of

his

prior

actions

constitute

strikes

because

they

were

dismissed at summary judgment with language stating that they
were “frivolous, malicious, or fail[ed] to state a claim.”

I

write separately simply to observe that there is another ground
on which Blakely’s IFP application should be denied -- one that
would hew to the clearly expressed intent of Congress in § 1915.
As the majority properly notes, see maj. op. at 9, regardless of
whether Blakely’s application for IFP status must be denied by
virtue

of

the

mandatory

three-strikes

rule

prescribed

in

§ 1915(g), we possess ample discretion to deny his request under
the

residual

authority

conferred

upon

courts

by

§ 1915(a).

Notwithstanding the efforts of the dissent to sow differences
between the majority and concurring opinions, the concurrence
stands

firmly

recognize

with

that

complementary

the

majority.

§ 1915(g)

Both

§ 1915(a)

See

functions.

and

maj.

op.

opinions,
serve
at

moreover,

distinct

9-10.

Here

but
the

discretionary denial inquiry cuts the Gordian Knot –- and in
doing

so,

litigants.

protects
As

a

the

federal

review

of

courts

from

Blakely’s

the

most

extensive

abusive

litigation

history makes plain, this is a paradigm example of the type of

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case in which the discretionary denial of an IFP application
would be appropriate.

I.
As demonstrated by the differing views of my colleagues in
this case, reasonable people can disagree on the question of
whether

Congress

intended

that

the

summary

judgments

issued

against Mr. Blakely should count as strikes under 28 U.S.C. §
1915(g).

I am persuaded that Judge Wynn’s fine opinion for the

court provides the correct answer to that question.

But the

debate has focused primarily on just the first of two steps that
exist in Congress’s well-crafted scheme for determining whether
to permit a prisoner to proceed in forma pauperis.

In my view,

the second step is as important as the first.
To

explain,

when

a

federal

court

receives

an

IFP

application from a prisoner who has a track record of filing
multiple unsuccessful actions in federal court, 28 U.S.C. § 1915
offers

two

paths

of

inquiry

for

determining

whether

the

prisoner’s application should be denied as a consequence of his
prior litigation conduct.

The first inquiry asks whether the

application must be rejected under the three-strikes provision
contained in § 1915(g).

Phrased as a limitation on the rights

of

provides

prisoners,

§ 1915(g)

that

“in

no

event

shall

a

prisoner” be entitled to IFP status in his action or appeal if

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“on 3 or more prior occasions” he has “brought an action or
appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a
claim.”

The provision thus creates a mandatory-denial baseline

for IFP applications: if a prisoner has three strikes, he is
categorically precluded from proceeding IFP (absent a showing of
imminent danger of serious physical injury).

See maj. op. at 5;

see also 3 Michael B. Mushlin, Rights of Prisoners § 17:34 (4th
ed. 2012).
If a prisoner has not accumulated three qualifying strikes,
courts

may

possess

the

discretion.

proceed
power

to
to

a

second

deny

IFP

inquiry
filing

through

status

which

at

their

they
own

To that end, the in forma pauperis statute provides

that “any court of the United States may authorize” a prisoner
to proceed IFP; it does not say that a court must do so.
U.S.C.

§ 1915(a)(1)

(emphasis

added).

Notably,

the

28

Supreme

Court relied on the statute’s use of the word “may” to hold in
In re McDonald that it was under no obligation to award IFP
filing status to a prisoner with a history of abusive litigation
conduct.

489 U.S. 180, 183-84 (1989) (per curiam).

The Court

reasoned instead that it possessed the authority to deny IFP
status “in the interests of justice.”

Id. at 184; see also In

re Sindram, 498 U.S. 177, 180 (1991) (per curiam) (noting that
“the Court has a duty to deny in forma pauperis status to those

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individuals who have abused the system”).

And when Congress

amended the law some seven years after McDonald to impose the
mandatory three-strikes limitation on prisoners’ IFP privileges,
it

left

untouched

the

word

“may”

in

§ 1915(a)

--

implicitly

ratifying the Court’s recognition of the discretionary power to
deny IFP applications.
Unsurprisingly,

then,

the

authority

of

courts

to

issue

discretionary IFP denials continues to enjoy wide acceptance.
For

example,

authority

to

the

D.C.

deny

IFP

Circuit

relied

status

to

a

on

its

prisoner

discretionary
in

Butler

v.

Department of Justice, even though the prisoner in that case had
not run afoul of the mandatory three-strikes rule.
440, 444-45 (D.C. Cir. 2007).
Supreme

Court’s

reasoning

492 F.3d

In doing so, the court echoed the

in

McDonald,

explaining

that

its

“discretionary authority to deny IFP status to prisoners who
have abused the privilege” derived from § 1915(a) itself, which
provides just that a court “may” authorize a prisoner to proceed
IFP.

Id.

issued
Thomas,

a

Still more recently, in May 2013, the Supreme Court
discretionary

explaining

denial

that

it

of

would

IFP
not

status
accept

in

Cardona

“any

v.

further

petitions in noncriminal matters from” Cardona without up-front
payment of the docketing fee because he had “repeatedly abused
this Court’s process.”

133 S. Ct. 2404 (2013) (per curiam).

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II.
In deciding whether to exercise their discretion to deny a
request for IFP filing status, courts may consider the “number,
content, frequency, and disposition of the [prisoner’s] previous
filings.”
Anderson,

Butler,
511

492

U.S.

F.3d

364,

at

365

445;

(1994)

see

also,

(per

e.g.,

curiam)

In

re

(denying

petitioner’s request to proceed in forma pauperis where he had
filed 22 petitions and motions over three years, none of which
were

successful,

and

“patently frivolous”).
profligate

filing

several

of

which

were

repetitive

and

Applying that standard here, Blakely’s

history

surely

warrants

denial

of

his

IFP

application.
With respect to the number and frequency of his filings,
Blakely does not dispute that he filed eight actions in federal
district court in South Carolina during the 1998 calendar year
alone and that he filed a ninth action in the same court in
2000.

All nine of these cases were disposed of by May 2000.

Three years later, this court issued an order in Blakely v.
South

Carolina

Department

of

Corrections,

denying

his

application to proceed IFP in that appeal on the ground that he
had violated § 1915(g)’s three strikes rule.

No. 03-6765 (4th

Cir.

his

June

20,

precipitated
federal

court

a

2003).
period
filings,

That
of
as

2003

repose
Blakely

30

denial
from

of

Blakely’s

avers

that

IFP

request

onslaught

until

2011,

of
he

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“waited over 7 years to file anything in federal court.”

J.A.

at 14.
It
lawsuits
explain

seems,

however,

altogether
that

he

in

that

the

instead

Blakely

intervening

began

filing

did

not

stop

timeframe.
suits

in

filing

Appellees

state

court,

apparently commencing some 26 actions in the Richland County
South Carolina Court of Common Pleas alone.
5.

Appellees’ Brief at

While Blakely correctly points out that records of these

various state court filings are not formally included in the
joint appendix to this case, see Appellant’s Reply Brief at 25,
he nowhere denies that he did in fact file a multitude of prison
actions

in

state

privileges.

court

Blakely

after

also

our

2003

contends

that

denial
these

of

his

state

IFP
court

filings should not be considered at all for purposes of our
discretionary

inquiry

since

the

IFP

statute

is

concerned

principally with abuse of the federal court system.
But

even

if

his

decision

to

subject

the

state

See id.

courts

to

a

torrent of litigation is to somehow be considered a mark in his
favor, that choice does not compel us to blind ourselves to his
ongoing pattern of litigation conduct.
More importantly, it turns out that Blakely’s decision to
change course and sue in state court was merely a temporary
detour.

For

federal

court

Blakely
with

has
gusto:

recently
in

31

2012

resumed
alone,

filing
he

cases

filed

in

nine

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additional actions in South Carolina district court.
Andrews,
Blakely

No.
v.

5:12-cv-03004-MGL

Cartledge,

No.

(D.S.C.

filed

Oct.

5:12-cv-02649-MGL-KDW

Blakely v.
18,

2012);

(D.S.C.

filed

Sept. 14, 2012); Blakely v. Greenville Cnty., No. 6:12-cv-02587MGL (D.S.C. filed Sept. 7, 2012); Blakely v. Moore, No. 5:12-cv02270-MGL (D.S.C. filed Aug. 9, 2012); Blakely v. Thompson, No.
5:12-cv-02150-MGL
Hallman,

No.

(D.S.C.

filed

5:12-cv-01289-MGL

Aug.
(D.S.C.

1,

2012);

filed

May

Blakely
17,

v.

2012);

Blakely v. Moore, No. 5:12-cv-01214-RMG (D.S.C. filed May 8,
2012); Blakely v. Thompson, No. 5:12-cv-00972-MBS (D.S.C. filed
Apr. 5, 2012); Blakely v. McCall, No. 5:12-cv-00410-RMG (D.S.C.
filed Feb. 13, 2012).

Thus, even without considering any of

Blakely’s various state court actions, it is beyond dispute that
he is a prolific filer in terms of both number and frequency,
having initiated at least seventeen cases in a single federal
district court during just the 1998 and 2012 calendar years.
Blakely suggests that because appellees did not themselves
provide the above case information, “it is not clear if the[]
[cases] even involve the same individual.”
Br. at 25.

Appellant’s Reply

However, apart from his conclusory assertion that

appellees have failed to prove that these cases were filed by
him (as opposed to being filed by a different prisoner sharing
the same name and middle initial in the same district court),

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Blakely has never actually claimed that he did not file the
above actions in 2012.
The third factor for our consideration, the disposition of
his

previous

application.

actions,

also

militates

against

Blakely’s

IFP

Blakely does not dispute that, of the many federal

actions he filed in 1998, every one of them terminated in an
adverse

disposition.

He

also

does

not

contend

that

he

prevailed in any of his more recently filed federal actions.

has
In

short, Blakely has failed to point to a single case of his
(filed in either state or federal court) that has resulted in a
final ruling in his favor.
This

makes

sense

when

one

considers

the

content

of

his

claims, the final factor that guides our discretionary inquiry.
While Blakely does not challenge the fact that all of his cases
have ultimately been deemed without merit, several of his cases
were

especially

lacking.

For

example,

in

two

of

his

1998

federal court actions, Blakely asked the district court to enter
an order compelling the defendants (the State of South Carolina
and the Greenville County Judicial System) to acquit him of all
pending charges against him in state court.
Greenville

Cnty.

Judicial

Sys.,

No.

See Blakely v.

0:98-cv-02978-MBS

(D.S.C.

Mar. 25, 1999) (at J.A. 227-231); Blakely v. Greenville Cnty.
Judicial Sys., No. 0:98-cv-02313-WBT (D.S.C. Sept. 1, 1998) (at
J.A. 190-201).

In one of the cases, the apparent basis of his

33

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request
Jeopardy

was

Filed: 10/22/2013

that

Clause

the

by

Pg: 36 of 62

presiding

allowing

a

judge

homicide

violated

the

Double

detective

to

testify

against him at a preliminary hearing and then again later on in
the proceedings.

See J.A. at 192.

Furthermore, as has been discussed extensively, more than
three of Blakely’s actions were dismissed at summary judgment
with language stating that they were “frivolous, malicious, or
fail[ed] to state a claim upon which relief may be granted.”
Regardless of whether this language converted these dismissals
into strikes under § 1915(g) (and I agree with the majority that
it

did),

negative

our

court

comment

is

on

free

the

to

consider

substance

of

the

language

Blakely’s

as

claims

a
in

deciding whether to deny in our discretion his IFP request.
In

sum,

all

four

factors

--

the

number,

frequency,

disposition, and content of his previous filings -- cut against
Blakely’s

IFP

application.

By

way

of

comparison,

his

track

record is at least as egregious as that of the prisoner in
Butler, whose application the D.C. Circuit found to be an easy
case for discretionary denial.

See 492 F.3d at 446 (noting that

Butler had filed ten appeals in the D.C. Circuit, eight of which
were in a four-year period, as well as some fifteen other listed
actions).

Thus, because Blakely is a serial filer who has taken

undue advantage of IFP status, it would be a proper exercise of

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our discretion to require Blakely to shoulder up front the cost
of his filing fees before proceeding in this court.

III.
My fine colleague in dissent disputes none of Blakely’s
copious litigation history.

The dissent takes no issue with the

fact that Blakely has filed dozens of lawsuits in state and
federal

court

since

1998,

twice

filing

lawsuits in a single calendar year.
scarcely mentioned by the dissent.
something

Congress

would

not

almost

ten

meritless

This pattern of abuse is

It appears of little moment,

wish

considered

and

courts

may

largely disregard.
Notwithstanding the full extent of Blakely’s prior abuse of
IFP

status,

the

dissent

proceeds

to

add

a

limitation

§ 1915(a)(1) that is nowhere in the statutory text.

to

According

to the dissent, courts may deny IFP status only if the criteria
under

§ 1915(g)

(delineating

are

§ 1915(g)

met.
as

See
the

dissenting

sole

operative

op.

at

53-54

rule).

Not

surprisingly, this view of the statute simply fails to accord
with the plain meaning of § 1915(a)(1), which afforded courts
the discretionary authority to authorize IFP status, but nowhere
limits that discretion in the manner the dissent now wishes to
prescribe.

The statute the dissent wishes Congress had written

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would have been easy enough to draft, but the limiting reference
to subsection (g) is, alas, nowhere to be found.
The dissent likewise overlooks the basic structure of the
statute.

It

reads

§ 1915(g)

to

separate provision in § 1915(a)(1).
54.
to

completely

swallow

up

the

See dissenting op. at 53-

This ignores the fact that we are expected to give effect
all

provisions

overlooks

the

in

a

distinctive

statute,
and

not

just

some.

It

also

complementary

roles

played

by

§ 1915(a)(1) and § 1915(g), the first of which is a conferral of
authority upon courts, and the latter of which is a limitation
upon repetitive lawsuits by prisoner litigants.
function

in

tandem,

and

they

manifestly

The provisions

foreclose

the

view

offered by the dissent -- namely that in enacting a restriction
on litigious conduct in one provision, Congress somehow meant to
broadly expand the possibilities for this precise conduct in
another.
The dissent’s position is finally not only at odds with the
language and structure of the statute, but with its purpose as
well.

It would incentivize prisoners with abusive litigation

histories to continue their litigious pattern, for under the
dissent’s view, petitioner’s extensive litigation history would
count for absolutely nothing in the discretionary calculus, the
very scenario Congress intended to forestall.

To support its

view, the dissent attempts to cabin Supreme Court cases that

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stand without question for the principle that courts are not
obliged to step aside and watch their processes subject to the
disregard that occurred with such incessant frequency as here.
See In re Sindram, 498 U.S. 177, 180 (1991) (per curiam) (noting
that “[T]he Court has a duty to deny in forma pauperis status to
those individuals who have abused the system.”); In re McDonald,
489 U.S. 180, 184 (1989) (“A part of the Court's responsibility
is to see that [IFP] resources are allocated in a way that
promotes

the

interests

of

justice.”).

These

statements

too

would be undermined were the dissent’s view to prevail. *

IV.
Federal

courts

have

the

obligation

to

reserve

their

attentions for those litigants who have not previously abused
the system.

Congress too has an interest in not having the

resources of a coordinate branch misused and squandered –- an

*

The remaining points in the dissenting opinion can be
readily addressed.
While the dissent complains that a multifactor test for the exercise of discretionary authority is
“amorphous,” dissenting op. at 55, it is not up to us to say
that a general grant of discretionary authority, quite common to
the law, is on that account impermissible.
The dissent’s
further complaint that IFP status has been denied on the basis
of previous abuse “regardless of the merit of his current case,”
id. at 56, overlooks the fact that prior abuse is not
infrequently a basis for some present loss of privilege, in this
case without the need to draw courts into the merits of a
prolific litigator’s every latest offering.

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interest expressed in the complementary provisions of § 1915(a)
and (g).

If this litigant were granted IFP status, I have a

difficult time envisioning one who would not be.

The majority

rightly notes that in § 1915(a) “Congress vested in courts the
authority to decide whether to grant in forma pauperis status,”
maj. op. at 10, and I am happy to concur in its thoughtful
opinion.
Judges Niemeyer, Keenan, and Diaz have kindly asked me to
show them as joining in this opinion.

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DUNCAN, Circuit Judge, concurring in the judgment:
I

respectfully

concur

in

the

judgment

of

the

majority,

which denies in forma pauperis (“IFP”) status to a litigant with
a

history

of

reasoning.

filings,

although

I

cannot

endorse

its

Like the dissent, I believe that a summary-judgment

disposition
1915(g).

abusive

cannot

constitute

a

strike

under

28

U.S.C.

§

I must part company with the dissent, however, due to

its surprising assertion that the Prison Litigation Reform Act
of

1995

(“PLRA”)

preexisting

sub

statutory

silentio

limits

discretion

under

both
§

district
1915(a)

courts’
and

the

inherent authority of district courts to handle their caseload.
Turning first to the majority’s view, I commend its attempt
to formulate a bright-line rule for determining when summary
judgment

qualifies

as

a

dismissal

under

the

PLRA.

Unfortunately, this approach may lead to curious results and
further

confusion.

According

to

the

majority,

a

grant

of

summary judgment on the ground that a suit is “frivolous” would
count as a strike, but the same ruling on the ground that the
action is “patently meritless” would not.

And, it is not clear

how the majority would treat a grant of summary judgment noting
that the disposition “counts as a strike under § 1915(g)” but
without listing the specific ground for the strike.

I would

respectfully suggest that engaging in such hairsplitting is less
desirable than relying on the bright line actually established

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by the statute: limiting strikes to actions that are in fact
dismissed.

As the dissent persuasively points out in its first

part, the term “dismissed” is far from the amorphous concept
that the majority suggests.

Rather, dismissal is a term of art

with a specific legal provenance.
This hairsplitting is all the more puzzling because, as the
judges

who

join

Judge

Wilkinson’s

recognize, it is unnecessary.

concurrence

implicitly

Questions about the IFP status of

an abusive prisoner-litigant can be decided more narrowly and
cleanly, and therefore should be so decided.

A review of past

summary judgment orders in search of the majority’s magic words
is

surely

litigant

an

who

unnecessary
has

abused

exercise
the

extent that Mr. Blakely has.
case

by

exercising

their

on

privilege

behalf
of

IFP

of

a

prisoner-

status

to

the

Courts can address this type of

authority

under

§

1915(a)

without

straining the meaning of the term “dismiss” in § 1915(g).

The

PLRA,

not

after

all,

was

intended

to

constrain

litigants,

courts.
For this reason, I must take issue with the dissent’s view
of courts’ discretionary authority under § 1915.

Its discussion

about the specific language of the PLRA governing the general,
preexisting language of § 1915(a)(1) is as irrefutable as it is
irrelevant--§ 1915(a) and § 1915(g) in no way conflict.

One is

a grant of discretion to courts and the other is a limitation on

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prisoners’ ability to proceed IFP.

The explicit terms of the

PLRA that became § 1915(g), which the dissent cites approvingly,
apply only to prisoners who have accrued three strikes.
does

the

PLRA

authority. ∗
Cir.

2011),

curtail

courts’

preexisting

Nowhere

discretionary

Furthermore, Tolbert v. Stevenson, 635 F.3d 646 (4th
on

which

the

dissent

relies,

suggests

reading

§

1915(a)(1) and § 1915(g) as complementary provisions, although
it did not decide whether a discretionary denial of IFP status
was appropriate in that case.

Id. at 654.

That opinion notes

that the presence of discretionary authority as an alternative
ground for denying IFP status removes the need for an expansive
interpretation of the term “dismissed.”
As

the

separate

concurrence

Id.

recognizes,

there

compelling alternative route to the majority’s result.
broad

interpretation
than

of

“dismissed”

Congress

pushes

intended

for

the
no

is

a

Thus, a
statutory

language

further

discernible

reason.

I therefore concur in the majority’s decision to deny

Mr. Blakely IFP status, but would do so based on discretionary
authority.

∗

Before the PLRA was enacted, the Fourth Circuit
acknowledged that courts had the discretion under § 1915(a) to
deny a litigant IFP status. See Graham v. Riddle, 554 F.2d 133,
134–35 (4th Cir. 1977).

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DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
More

than

thirty-five

years

ago,

the

Supreme

Court

recognized that it is “established beyond doubt that prisoners
have a constitutional right of access to the courts.”
Smith, 430 U.S. 817, 821 (1977).
without limits.

Bounds v.

Certainly, that right is not

The three-strikes rule imposes a notable limit

on a prisoner’s ability to proceed in forma pauperis (“IFP”).
28 U.S.C. § 1915(g).

But this limit must have its own limits

and Congress recognized as much.

Only by disregarding the clear

statutory language of § 1915(g) can the majority hold that a
grant of summary judgment constitutes a “dismissal” for purposes
of the statute.
access

to

the

In doing so, the majority improperly restricts
courts

well

beyond

Congress’

intent.

With

respect, I dissent.

I.
The

theory

offered

by

the

majority

for

its

holding

is

belied by the unambiguous language of § 1915(g) itself and the
Supreme Court’s instruction as to proper statutory construction.
Section 1915(g) expressly provides that a prisoner may not
proceed IFP “if the prisoner has, on 3 or more prior occasions,
while

incarcerated

or

detained

in

any

facility,

brought

an

action or appeal . . . that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which

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relief

Doc: 71

may

language

of

be
§

Filed: 10/22/2013

granted.”
1915(g)

Id.

thus

Pg: 45 of 62

(emphasis

states

“dismissed” can constitute strikes.

that

added).
only

cases

The

plain

that

are

This language makes clear

that cases resolved by a procedure other than dismissal -- like
summary judgment, as in this case -- are not strikes.
Time and again, the Supreme Court has directed us to defer
to “the language employed by Congress” and adopt “the assumption
that the ordinary meaning of that language accurately expresses
the legislative purpose.”
Quality

Mgmt.

Dist.,

541

Engine Mfrs. Ass’n v. S. Coast Air
U.S.

246,

quotation marks and citation omitted).

252

(2004)

(internal

Staying true to that

directive requires rejection of the majority’s theory.
In Tolbert v. Stevenson, 635 F.3d 646, 654 (4th Cir. 2011),
a unanimous panel of this court correctly recognized as much,
holding that “a grant of summary judgment . . . is not one of
the grounds listed in § 1915(g), and therefore . . . does not
count as a strike.”

Our Tolbert rule comports with the position

of all other courts of appeals to have reached the question.

As

the District of Columbia Circuit has explained, “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.”
2007).

Thompson v. DEA, 492 F.3d 428, 438 (D.C. Cir.

“But if the court dismisses the complaint on some other

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procedural
judgment,

Filed: 10/22/2013

mechanism,
the

such

dismissal

Pg: 46 of 62

as

will

.
not

.

.

count

a

motion

as

a

for

summary

strike.”

Id.;

accord Taylor v. First Med. Mgmt., 508 F. App’x 488, 494 (6th
Cir. 2012); Stallings v. Kempker, 109 F. App’x 832, 832-33 (8th
Cir. 2004) (per curiam); Angelle v. Gibson, No. 00-50675, 2001
WL 498763, at *1 (5th Cir. Apr. 12, 2001) (per curiam).
Indeed, that a case resolved on summary judgment is not
“dismissed” and thus does not constitute a strike for § 1915(g)
purposes

is

so

obvious

numerous

district

that

courts,

unpublished opinions.

at

least

simply

have

three

circuits,

assumed

as

and

much

in

See Taylor, 508 F. App’x at 494 (“The

plain language seemingly limits the application of a strike to
dismissals by only speaking of dismissals.”); Stallings, 109 F.
App’x at 832-33 (“Because the district court resolved the case
through summary judgment, the dismissal does not constitute a
‘strike’ . . . .”); Angelle, No. 00-50675, 2001 WL 498763, at *1
(“Because the district court’s dismissal for failure to state a
claim acted as a grant of summary judgment, the district court’s
judgment does not count as a ‘strike.’”); see also A Jailhouse
Lawyer’s Manual ch. 14 n.85 (8th ed. 2009) (collecting cases).
Regrettably, today the majority rejects the rule adopted in
Tolbert and

by

our

sister

circuits

and

concludes

resolved on summary judgment count as strikes.
rationales offered for doing so is persuasive.

44

that

cases

Neither of the

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A.
The majority’s initial –- and extraordinary –- rationale
for this theory is that the plain language of § 1915(g) somehow
permits a grant of summary judgment to count as a strike.

The

majority relies on the fact that in “common usage,” disposition
on summary judgment is sometimes referred to as “dismissal” and
that the dictionary definition of “dismiss” is “to terminate (an
action or claim) without further hearing, esp. before the trial
of the issues involved.”
1999).

But

dictionary

neither

definition

imprecise
can

first year of law school:
in important respects.

Black’s Law Dictionary 482 (7th ed.
common

eliminate

usage

a

nor

lesson

an

overbroad

learned

in

the

dismissal and summary judgment differ

Both can terminate an action, but a case

resolved by summary judgment is not “dismissed.”
In

the

very

context

of

the

three-strikes

rule,

we

have

emphasized that “[w]hen Congress directly incorporates language
with an established legal meaning into a statute, we may infer
that Congress intended the language to take on its established
meaning.”

McLean v. United States, 566 F.3d 391, 396 (4th Cir.

2009); accord Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990)
(“We

assume

that

Congress

is

aware

of

existing

law

when

it

passes legislation.”).
The word “dismissed” in § 1915(g), particularly “coupled
with the words ‘[for] fail[ure] to state a claim upon which

45

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relief

may

be

Filed: 10/22/2013

granted,’

meaning.”

See

established

legal

well-established

McLean,
meaning
legal

.

.

566

Pg: 48 of 62

.

has

F.3d

at

obviously

meaning

of

a

well-established
396.

And

differs

summary

from

that
the

judgment.

legal
well-

equally
Compare

Fed. R. Civ. P. 56 (defining the distinct basis for summary
judgment) with Fed. R. Civ. P. 12(b)(6) (listing grounds for
dismissal including failure to state a claim upon which relief
can be granted) and 28 U.S.C. § 1915(e)(2) (listing grounds for
dismissal
state

a

including
claim);

frivolity,
id.

maliciousness,

§ 1915A(b)

and

(same);

failure
42

to

U.S.C.

§ 1997e(c)(same). 1
I find perplexing the majority’s repeated assertion that a
dismissal and a grant of summary judgment differ only in their
“procedural posture.”
so,

this

is

not

See ante at 3, 9, 15.
an

insignificant

Even if this were

difference.

“procedural posture” may make all the difference.

Rather,
See, e.g.,

Lucas v. S.C. Coastal Comm’n, 505 U.S. 1003, 1013 n.3 (1992).

1

The majority posits that I consider dispositions under
Federal Rule of Civil Procedure 12(b)(6) to be the only “actual
dismissals” for the purpose of § 1915(g). Not so. As noted in
the text above, dismissals pursuant to 28 U.S.C. §§ 1915(e)(2),
1915A(b) and 42 U.S.C. § 1997e(c) also count as strikes because
those statutes expressly direct courts to “dismiss” an action if
it is frivolous, malicious, or fails to state a claim.
My
emphasis on Rule 12(b)(6) serves only to illustrate from the
well developed law considering Rule 12(b)(6) motions that
“dismissal” differs from “summary judgment.”

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In any event, a dismissal and a grant of summary judgment differ
from each other in far more than “procedural posture.”

See

Bradley Scott Shannon, A Summary Judgment Is Not a Dismissal!,
56 Drake L. Rev. 1, 7 (2007) (summarizing differences in moving
party, timing of motion, ability to waive, determining propriety
of

jurisdiction,

preclusive

nature

effect,

of

relevant

etc.).

And,

evidence,

contrary

to

appealability,
the

suggestion, these differences are well recognized.

majority’s
See, e.g.,

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990); Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986).
To be sure, if Congress had wanted § 1915(g) to cover more
than actual dismissals, it could have said so.

The fact that it

did not speaks volumes, as we and other courts have previously
explained.

See, e.g., Green v. Young, 454 F.3d 405, 409 (4th

Cir. 2006) (“The . . . three-strikes provision by its terms
applies only if a prisoner has had three prior actions dismissed
as ‘frivolous, malicious, or [for] fail[ure] to state a claim
. . . .’

Because a dismissal for failure to exhaust is not

listed in 1915(g), it would be improper for us to read it into
the statute.”); Butler v. Dep’t of Justice, 492 F.3d 440, 444
(D.C. Cir. 2007) (“Had Congress wanted to include dismissals for
failure to prosecute among the strikes listed in § 1915(g), it
could

have

done

so.

If

we

were

to

adopt

the

government’s

approach, we would be effectively writing another category of

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strikes into the [statute].
inclination

to

substitute

Pg: 50 of 62

We have neither the authority nor
our

policy

judgment

for

that

of

Congress.”) (internal citation omitted).
In sum, the plain language of § 1915(g) most certainly does
not permit a court to treat a case resolved by summary judgment
as “dismissed” and so count it as a strike for purposes of
§ 1915(g).
B.
The majority also attempts to rely on Congress’ “intent” in
drafting the three-strikes rule.
indication

Congress

distinction

had

between

in

It maintains that there is no

mind

dismissal

at
and

the

time

summary

the

“academic”

judgment.

It

emphasizes that an overriding purpose of the Prison Litigation
Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996),
which established the three-strikes rule in § 1915(g), was to
limit frivolous prisoner suits as much as possible.

See, e.g.,

141 Cong. Rec. S14,418 (daily ed. Sept. 27, 1995) (statement of
Sen. Orrin Hatch) (“Our legislation . . . addresses the flood of
frivolous lawsuits brought by inmates.”).
The

majority

ignores

the

fact,

however,

frivolous suits was but a means to an end:

that

reducing

by enacting the

PLRA, Congress intended most fundamentally to reduce the burden
on overworked courts.

See id. (“The crushing burden of these

frivolous

it

suits

makes

difficult

48

for

courts

to

consider

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meritorious claims.”); 141 Cong. Rec. S7526 (daily ed. May 25,
1995) (statement of Sen. Jon Kyl) (noting that frivolous suits
were “draining precious judicial resources” and that § 1915(g)
would “free up judicial resources for claims with merit by both
prisoners and nonprisoners”); id. at S7524 (statement of Sen.
Robert Dole) (“Frivolous lawsuits . . . waste valuable judicial
and legal resources, and affect the quality of justice enjoyed
by the law-abiding population.”).
Counting summary judgments as strikes is wholly out-of-step
with this intent.

Doing so would require courts to engage in a

time-intensive, individualized inquiry to determine whether, in
each of a plaintiff’s prior cases, a court had granted summary
judgment

on

the

basis

of

a

specific

statutory

criterion

not

required for the grant of summary judgment, i.e., frivolousness,
maliciousness, or failure to state a claim.

In Tolbert, we

emphasized this very point, noting that “[t]o require district
courts to so parse summary judgment orders and their supporting
documents

would

even

further

increase

their

workload,

straying far afield of the purpose of the PLRA.”

again

635 F.3d at

653 n.7.
Other courts, too, have recognized the need for bright-line
rules

for

identifying

strikes

to

avoid

increasing

workloads in contravention of the PLRA’s purpose.

courts’

See, e.g.,

Byrd v. Shannon, 715 F.3d 117, 125 (3d Cir. 2013) (stating that

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“reducing

constitutes

a

litigation

strike”

on

serve

Pg: 52 of 62

whether
the

a

particular

dismissal

PLRA’s

overriding

purpose);

Thompson, 492 F.3d at 438 (“In addition to our obligation to
adhere to section 1915(g)’s text, we are mindful that a driving
purpose of the PLRA is to preserve the resources of both the
courts and the defendants in prisoner litigation.

Here, all

agree that purpose is best accomplished by a bright-line rule
that avoids the need to relitigate past cases.”).
In an attempt to avoid the reality that their new rule will
require

this

time-intensive

parsing

--

wreaking

the

precise

waste of judicial resources that Congress sought to avoid -- the
majority offers a limitation on this new rule.
would

treat

a

case

disposed

of

by

My colleagues

summary

judgment

as

“dismissed” for purposes of § 1915(g) only when the district
court has made explicit that it believed the case was frivolous,
malicious,

or

failed

to

state

a

claim.

This

limitation, however, runs into a different problem.

asserted

It requires

an appellate court inappropriately to acquiesce in a district
court’s determination of an issue that the parties may not have
had an opportunity to address and that is totally unnecessary to
the court’s grant of summary judgment.
(permitting
genuine

summary

dispute

as

judgment
to

any

on

the

material

See Fed. R. Civ. P. 56
basis

that

fact

and

entitled to judgment as a matter of law”).

50

“there
the

is

no

movant

is

The majority’s view

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thus

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forces

rubberstamp

appellate
district

courts

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an

untenable

decisions

court

into

on

issues

catch-22:

not

strictly

before them or expend time and energy to decide these issues
independently.
Limiting
conundrum.

strikes

to

actual

dismissals

avoids

this

The reviewing court would not need to bind itself to

statements a lower court may have made in passing and without
briefing by the parties.

Moreover, a reviewing court would not

need to engage in a searching inquiry of the district court’s
decision to decide the issues of frivolity or maliciousness for
itself.

Thus, the straightforward rule that a case resolved on

summary judgment is never “dismissed” for purposes of § 1915(g)
is both dictated by the statutory language and the only workable
rule consistent with the statutory purpose.

II.
Perhaps
rationale,

a

recognizing

the

group

colleagues

of

my

defects
join

in

the

majority’s

a

long

concurrence

offering a second theory for denying Blakely IFP status.
concurrence,

of

course,

is

only

51

dicta,

without

The

precedential

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effect, because a majority of the court does not embrace its
theory.

There is good reason for this. 2

The

concurrence

contends

that

28

U.S.C.

§ 1915(a)(1)

permits a court to deny IFP status to a prisoner who does not
have three strikes, but who has, in the court’s view, previously
abused the IFP system, whatever the merits of his current case.
This assertion -- that we have broad discretion to deny IFP
status to a prisoner who has not had three cases dismissed, on
the basis of other aspects of his filing history -- is deeply
flawed.

Use

unambiguous

of

such

legislative

discretion
history

would

and

the

defy
very

the

clear

purpose

of

and
the

PLRA’s three-strikes scheme, a result Congress surely did not
intend.
Under

28

U.S.C.

§

1915(a)(1),

“any

court

of

the

United

States may authorize the commencement, prosecution or defense of
any suit, action or proceeding, civil or criminal, or appeal
therein, without prepayment of fees.”

The concurrence posits

that this language -- that a court “may authorize” a party to
proceed

IFP

--

also

implies

an

inherent

authority

not

to

authorize a prisoner to proceed IFP if he has ever previously

2

I do not “sow differences,” ante at 26, among my
colleagues; I merely count votes, a majority of the court does
not join in the rationale advocated by the concurring judges.

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abused the IFP right, regardless of whether the prisoner has
three strikes.
Try

as

it

might,

the

concurrence

cannot

reconcile

its

theory with the telling legislative history of § 1915(a)(1) and
§ 1915(g).

Nearly half a century after the general grant of

discretionary authority in § 1915(a)(1) had been on the books,
and

more

than

a

century

after

its

predecessor

had,

Congress

established a more specific scheme for limiting prisoners’ abuse
of the IFP system:

the three-strikes rule of § 1915(g).

See 62

Stat. 954 (1948); 27 Stat. 252 (1892); see also Rivera v. Allin,
144 F.3d 719, 722 (11th Cir. 1998) (noting that “[o]n April 26,
1996, [§ 1915(a)] changed when the President signed into law the
PLRA”), abrogated on other grounds by Jones v. Bock, 549 U.S.
199 (2007).
It is “a commonplace of statutory construction that the
specific governs the general,” and this command applies with
particular

force

where,

as

here,

the

general

clause

(§ 1915(a)(1)) is a “relic” of an earlier (pre-§ 1915(g)) reign.
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 385
(1992).

As

the

Supreme

Court

explained

in

FDA

v.

Brown

Williamson Tobacco Corp., 529 U.S. 120, 143 (2000):
The classic
enacted over
implications
implications
so where the

judicial task of reconciling many laws
time . . . necessarily assumes that the
of a statute may be altered by the
of a later statute. This is particularly
scope of the earlier statute is broad but

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the subsequent statute[] more specifically address[es]
the topic at hand. . . . [A] specific policy embodied
in a later federal statute should control our
construction of the [earlier] statute, even though it
ha[s] not been expressly amended.
(emphasis

added)

omitted).

The concurrence simply ignores these long-established

principles.
those

must

citation

and

quotation

marks

Undoubtedly, this is because, if properly applied,

principles

specific

(internal

lead

three-strikes

govern

any

more

to

but

one

scheme

for

general

conclusion:
abusive

authority

the

PLRA’s

prisoner-litigants

that

might

otherwise

apply. 3
Although

the

concurrence

protests

to

the

contrary,

its

theory also cannot be reconciled with another long-established
statutory construction principle:

a court must read statutory

provisions in light of the whole statute and the objects and
policy

of

that

statute.

See,

e.g.,

id.

at

133

(“It

is

a

fundamental canon of statutory construction that the words of a
3

Those colleagues who join the concurrence complain that I
rewrite § 1915(a), inventing a “limitation” to the statute where
none exists.
Ante at 35.
This criticism is exceedingly odd
given that all of these judges also join the majority’s
extensive rewrite of § 1915(g) to invent an entirely new
category of cases -- summary judgments -- that will henceforth
count as strike “dismissals.” And, of course, the concurrence’s
criticism is baseless:
I do not “rewrite” § 1915(a).
Rather,
in accord with Supreme Court directives, I simply rely on
statutory text, history, structure, and purpose to conclude
that, in the limited context of prisoner cases, Congress
intended § 1915(a)(1) to be displaced by a new and more specific
statute, § 1915(g).

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statute must be read in their context and with a view to their
place

in

the

overall

statutory

scheme.”

(internal

quotation

marks omitted)); Babbitt v. Sweet Home Chapter of Cmtys. for a
Great Or., 515 U.S. 687, 698-700 (1995) (emphasizing that we
must read a statute in light of its underlying purpose).
Congress

enacted

the

three-strikes

statute

to

eliminate

waste of judicial resources by setting forth a single, clear
rule for denying IFP status to abusive prisoner-litigants.

This

rule burdens judicial resources far less than the two-tiered
system advocated by the concurrence, for a two-tiered system
requires courts to assess both the number of strikes and whether
there is some other discretionary reason for denying IFP status.
The simpler rule is preferable especially given the amorphous
nature of the multi-factor test propounded by the concurrence
for determining when an exercise of discretionary authority is
appropriate.

This

multi-factored

test

would

only

“further

increase [courts’] workload, . . . straying far afield of the
purpose of the PLRA.”

See Tolbert, 635 F.3d at 653 n.7.

It

defies reason to engage in such a time-consuming inquiry –- in
the name of judicial economy –- simply to avoid reaching the
merits. 4

4

As the majority properly and repeatedly explains, we
requested Blakely only to “address whether certain orders [four
summary judgment orders] constitute strikes” and our review is
(Continued)
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Finally, contrary to the concurrence’s suggestion, Supreme
Court authority hardly supports its view that the lower courts
have discretion to deny IFP status to a prisoner who has not
accumulated

three

strikes

but

has,

in

the

court’s

view,

previously abused the IFP system, regardless of the merit of his
current case.

First, the Supreme Court does not invoke its own

discretionary authority to deny IFP status prospectively without
first

determining

frivolous.

that

the

petitioner’s

present

case

is

See In re Amendment to Rule 39, 500 U.S. 13, 14

(1991) (per curiam).

Thus, the Supreme Court rule does not

countenance, let alone support, denial of IFP status to Blakely
here solely on the basis of his previous cases.

Moreover, the

Supreme Court has never denied anyone the right to appeal IFP,
i.e., to be granted review on the merits as of right.

Rather,

in every case -- including those relied on by the concurrence -it has applied this discretionary authority only when a litigant
petitions for relief by writ.

Obviously, this is a far more

limited burden on access to the courts.

Finally, the Supreme

thus “restricted” to those orders.
Ante at 5 n.1; 18; and 22
n.9.
At its outset, the concurrence states it “agrees fully”
with the majority.
Id. at 26.
Thus, the concurrence’s
criticism of Blakely (and me) for our failure to address other
cases brought by Blakely, id. at 30-35, seems inexplicable.
This is particularly so given that the record evidence as to the
character of these cases is, to put it generously, thin.

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never

suggested

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that

the

courts

of

appeals

should

exercise discretionary authority to deny IFP status to prisoners
appealing as of right.

Accordingly, Supreme Court precedent

offers precious little support for the concurrence’s expansive
view of the discretion granted in § 1915(a)(1).
In
PLRA’s

sum,

the

specific

concurrence

refuses

three-strikes

rule

to

recognize

displaced

that

any

the

general

discretionary authority set forth in § 1915(a)(1) with respect
to

prisoner

“action[s]

or

appeal[s],”

28

U.S.C.

§ 1915(g).

Instead it attempts to extend general discretionary authority
well beyond anywhere the Supreme Court has taken it.

III.
By

ignoring

the

plain

language

limiting

§

1915(g)

to

dismissals, (and in some cases reading § 1915(a)(1) to swallow
§ 1915(g)), my colleagues defy the express will of Congress.
Worse

yet,

in

doing

so,

they

promise of our legal system:

undermine

the

most

fundamental

equal access to justice.

Their

theories fly in the face of our obligation to construe narrowly
any limitation on a litigant’s constitutional right of access to
the courts.

See, e.g., Chambers v. Balt. & Ohio R.R. Co., 207

U.S. 142, 148 (1907) (“The right to sue and defend in courts is
. . . the right conservative of all other rights, and lies at

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the foundation of orderly government.”); accord Cromer v. Kraft
Foods N. Am., Inc., 390 F.3d 812, 817-18 (4th Cir. 2004).
As the Supreme Court recognized in a case on which the
concurrence itself relies, “[p]aupers have been an important -and valued -– part of the Court’s docket, see, e.g., Gideon v.
Wainwright,

372

U.S.

335

(1963),

and

remain

so.”

McDonald, 489 U.S. 180, 184 (1989) (per curiam).
my colleagues disregard this value.

In

re

Regrettably,

By denying Blakely leave to

proceed IFP before even glancing at the merits of his current
claim, the majority of the court improperly denies an indigent
access to justice, and sets a dangerous course for the future.
I respectfully dissent.

Judges King, Davis, and Thacker

join in this dissent; Judge Gregory joins in Part I.

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GREGORY, Circuit Judge, dissenting:
I join part I of Judge Motz’s dissent arguing that summary
judgment decisions do not qualify as dismissals for purposes of
§ 1915(g).

C.f. Butler v. Dep’t of Justice, 492 F.3d 440, 444

(D.C. Cir. 2007) (“had Congress wanted to include dismissals for
failure to prosecute among the strikes listed in § 1915(g), it
could have done so”).

Therefore, Appellant does not have the

requisite three strikes that would automatically preclude him
from IFP status under § 1915(g).
I

write

separately

to

clarify

that

courts

do

retain

discretion under limited circumstances to deny in forma pauperis
(“IFP”) status under § 1915(a).
discretion in this case.
right

of

access

regularized

to

Such denial implicates the fundamental

the

resolution

However, I would not use that

of

courts.
conflicts”

organized and cohesive society.”
U.S. 371, 374 (1971).
be used sparingly.

“[T]he
is

ability

to

fundamental

seek

to

“an

See Boddie v. Connecticut, 401

As such, our discretionary power should
For example, discretionary denial of IFP

status would be appropriate where an individual files dozens of
abusive
avoid

claims

but

accruing

strategically

strikes

under

withdraws

§

them

1915(g).

in

While

order

to

there

is

certainly evidence that Appellant is a prolific filer, there is
no

evidence

of

strategic

maneuvering,

Appellant’s past cases were abusive.

nor

evidence

that

Without such evidence of a

longstanding, clear pattern of abusive filings, denial of IFP

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under

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§

1915(a)

is

Pg: 62 of 62

inappropriate.

reasons, I dissent.

60

For

the

foregoing