James Blakely v. Robert Ward
Filing
AMENDING ORDER/OPINION filed [999225409] amending and superseding Published Authored Opinion [999002806-2], Published Authored Opinion [999221875-2]. Originating case number: 4:10-cv-00718-RMG Copies to all parties. Mailed to: Jina Moon, Matthew Vaughan, Frederick Hall. [11-6945]
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Filed:
October 24, 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 further amends its opinion filed October 21,
2013, as follows:
On page 9, penultimate line of text -- the spelling of
the word “abused” is corrected.
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
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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.
2
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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,
motion
or
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.,
Filed: 10/24/2013
Inc.,
368
U.S.
Pg: 11 of 63
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 abused 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
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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).
Blakely is not alone in his belief that summary judgment
orders per se cannot constitute strikes for PLRA purposes.
3
(Continued)
4
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
16
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dismissal
but
bells
frivolous,
of
rather
on
Pg: 20 of 63
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).
18
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claim
upon
Filed: 10/24/2013
which
relief
may
Pg: 22 of 63
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).
23
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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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they
Doc: 72
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
Blakely’s
from
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.
Circuit
deny
IFP
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
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that
Clause
the
by
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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
42
Appeal: 11-6945
relief
Doc: 72
may
language
of
be
§
Filed: 10/24/2013
granted.”
1915(g)
Id.
thus
Pg: 46 of 63
(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: 10/24/2013
mechanism,
the
such
dismissal
Pg: 47 of 63
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
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relief
may
be
Filed: 10/24/2013
granted,’
meaning.”
See
established
legal
well-established
McLean,
meaning
legal
.
.
566
Pg: 49 of 63
.
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: 51 of 63
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
distinction
Congress
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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rules
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“reducing
constitutes
a
litigation
strike”
on
serve
Pg: 53 of 63
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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&
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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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has
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never
suggested
Pg: 60 of 63
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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status
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under
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§
1915(a)
is
Pg: 63 of 63
inappropriate.
reasons, I dissent.
60
For
the
foregoing
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