James Blakely v. Robert Wards , 701 F.3d 995 ( 2012 )


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  •                         PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    JAMES G. BLAKELY, a/k/a Jimmy G.        
    Blakely,
    Plaintiff-Appellant,
    v.
    ROBERT WARDS, Regional Director;
    MR. DAVID M. TATARSKY, General
    Counsel Attorney; A. PADULA,
    Warden; M. BELL, Associate
    Warden; MAJOR DEAN; NURSE
    MACDONALD, Head Nurse at Lee
    Correctional; J. LIVINGTON,
    Librarian; A. SMITH, Business               No. 11-6945
    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)
    2                      BLAKELY v. WARDS
    Argued: September 18, 2012
    Decided: December 14, 2012
    Before AGEE, WYNN, and FLOYD, Circuit Judges.
    Motion for reconsideration denied by published opinion.
    Judge Wynn wrote the opinion, in which Judge Agee and
    Judge Floyd concurred.
    COUNSEL
    ARGUED: Frederick G. Hall, GEORGETOWN UNIVER-
    SITY LAW CENTER, Washington, D.C., for Appellant. Dan-
    iel Roy Settana, Jr., MCKAY, CAUTHEN, SETTANA &
    STUBLEY, PA, Columbia, South Carolina, for Appellees.
    ON BRIEF: Steven H. Goldblatt, Director, Doug Keller,
    Supervising Attorney, Nilam A. Sanghvi, Supervising Attor-
    ney, Jina Moon, Student Counsel, Matthew T. Vaughan, Stu-
    dent Counsel, GEORGETOWN UNIVERSITY LAW
    CENTER, Washington, D.C., for Appellant. Erin Farrell Far-
    thing, MCKAY, CAUTHEN, SETTANA & STUBLEY, PA,
    Columbia, South Carolina, for Appellees.
    OPINION
    WYNN, Circuit Judge:
    With the Prisoner Litigation Reform Act, Congress sought
    to reduce the number of frivolous lawsuits flooding the fed-
    eral courts. Congress did so in part by enacting 
    28 U.S.C. § 1915
    (g), a "three-strikes" statute providing that if a prisoner
    has had three prior cases dismissed as frivolous, malicious, or
    BLAKELY v. WARDS                        3
    for failure to state a claim for which relief may be granted, the
    prisoner generally may not proceed in forma pauperis but
    rather must pay up-front all filing fees for his subsequent
    suits.
    Plaintiff James G. Blakely challenges this Court’s denial of
    his attempt to proceed in forma pauperis on appeal. He con-
    tends that his prior actions dismissed as "frivolous, malicious,
    or fail[ing] to state a claim" cannot count as strikes under Sec-
    tion 1915(g) because the dismissals occurred at summary
    judgment. But neither precedent, nor the statute itself, nor
    Congressional intent support Blakely’s contention. Instead,
    we hold that the fact that an action was dismissed as frivolous,
    malicious, or failing to state a claim, and not the case’s proce-
    dural posture at dismissal, determines whether the dismissal
    constitutes a strike under Section 1915(g). Because Blakely
    has had more than three prior cases dismissed (on summary
    judgment) expressly as frivolous, malicious, or failing to state
    a claim, we deny his motion for reconsideration.
    I.
    Blakely, a prisoner in a South Carolina correctional institu-
    tion, has pursued over forty cases in federal district court, ten
    appeals in this Court, and numerous suits in state court. In
    2010, Blakely filed the underlying Section 1983 action
    against Defendants, South Carolina officials including the
    Director of the Department of Corrections and counsel for the
    Department of Corrections, and "Lee Correctional Institution"
    employees including the facility’s head nurse, librarian, and
    chaplain. Blakely alleged various constitutional rights viola-
    tions.
    Defendants removed the case from state court to federal
    district court and then moved for summary judgment. A mag-
    istrate judge issued a Report and Recommendation finding
    that Blakely’s claims were meritless. The district court
    4                      BLAKELY v. WARDS
    agreed, granted summary judgment in Defendants’ favor, and
    dismissed the case. Blakely appealed to this Court.
    To avoid having to pay the necessary appellate filing fees
    up front, Blakely sought to proceed in forma pauperis ("IFP").
    This Court initially denied Blakely’s application to proceed
    IFP. After Blakely moved for reconsideration, this Court
    assigned Blakely counsel and directed the parties to brief
    whether certain previously-dismissed suits constitute "strikes"
    under 
    28 U.S.C. § 1915
    (g), the Prisoner Litigation Reform
    Act ("PLRA"), such that Blakely is barred from proceeding
    IFP in his appeal. The merits of the underlying summary
    judgment order are, therefore, not currently before us. Rather,
    we consider only whether Blakely should be allowed to pro-
    ceed IFP in his appeal of that order.
    II.
    Several of Blakely’s previously-dismissed suits were termi-
    nated at summary judgment. Blakely contends that such sum-
    mary judgment dismissals, as a matter of law, cannot
    constitute strikes under 
    28 U.S.C. § 1915
    (g). Specifically,
    Blakely asserts that in Tolbert v. Stevenson, 
    635 F.3d 646
     (4th
    Cir. 2011), "this Circuit" established "a bright-line rule that a
    case dismissed on summary judgment is not a strike under
    § 1915(g)." Appellant’s Br. at 19. We do not agree.
    Whether a case dismissed at summary judgment may count
    as a strike under Section 1915(g) is a question of law, which
    we review de novo. Tolbert, 
    635 F.3d at 649
    . Applying that
    standard of review, we observe that the critical section of the
    PLRA at issue in Tolbert and this case states:
    In no event shall a prisoner bring a civil action or
    appeal a judgment in a civil action or proceeding
    under this section if the prisoner has, on 3 or more
    prior occasions, while incarcerated or detained in
    any facility, brought an action or appeal in a court of
    BLAKELY v. WARDS                          5
    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 pris-
    oner is under imminent danger of serious physical
    injury.
    
    28 U.S.C. § 1915
    (g). In other words, if a prisoner has had
    three prior cases dismissed as frivolous, malicious, or failing
    to state a claim for which relief may be granted, the prisoner
    generally must pay up-front all filing fees for his subsequent
    suits.
    In Tolbert, this Court considered whether the three–strikes
    provision applies only to actions dismissed in their entirety as
    frivolous, malicious, or failing to state a claim, or whether it
    also applies to actions in which some, but not all, of the
    claims were dismissed on those grounds. 
    635 F.3d at 647
    .
    This Court held that "§ 1915(g) requires that a prisoner’s
    entire ‘action or appeal’ be dismissed on enumerated grounds
    in order to count as a strike." Id. at 651. Because Blakely does
    not contend that his cases were dismissed only in part on the
    enumerated grounds, Tolbert is not directly on point.
    Further, in Tolbert, the Court was neither presented with,
    nor did it address, the question of whether a dismissal on sum-
    mary judgment expressly stating that the underlying suit "is
    frivolous, malicious, or fails to state a claim" can constitute
    a strike under Section 1915(g). Blakely correctly notes that
    the Court in Tolbert stated that "a grant of summary judgment
    to defendants also is not one of the grounds listed in
    § 1915(g), and therefore Lightsey also does not count as a
    strike." Id. at 654. However, the summary judgment order at
    issue in Lightsey, and thus in Tolbert, nowhere stated that the
    pertinent suit was frivolous, malicious, or failed to state a
    claim. Brief of Defendants-Appellees at ADD69-ADD71,
    Tolbert, 
    635 F.3d 646
     (No. 09-8051). Crucially, dismissed
    suits count as strikes only when "dismissed on the grounds
    that [they are] frivolous, malicious, or fail[ ] to state a claim
    6                          BLAKELY v. WARDS
    upon which relief may be granted . . . ." 
    28 U.S.C. § 1915
    (g).
    It follows, then, that the Lightsey summary judgment order
    could not have counted as a strike. Indeed, most summary
    judgment orders would likely not qualify as Section 1915(g)
    strikes because, at that point, malice, frivolousness, and fail-
    ure to state a claim are not usually addressed.
    The only case cited in Tolbert to support the proposition
    that the Lightsey summary judgment could not constitute a
    strike for purposes of Section 1915(g) is Richardson v. Ray,
    402 F. App’x 775 (4th Cir. 2010) (per curiam) (unpublished
    and decided without oral argument). In Richardson, a one-
    paragraph-long opinion, this Court noted that:
    [E]xamination of the district court’s order in Rich-
    ardson v. Grizzard . . . and the subsequent appeal . . .
    reveals that the action was dismissed on summary
    judgment and that the appeal was dismissed for
    being without merit. Because neither the action nor
    the appeal was dismissed as frivolous, malicious, or
    for failure to state a claim, neither should have
    counted as a qualifying strike.
    
    Id. at 776
     (emphasis added). Significantly, the Court made
    clear with the word "because" that the reason the summary
    judgment dismissal did not constitute a strike was not its pro-
    cedural posture but rather its failure to ring the PLRA bells of
    frivolous, malicious, or failure to state a claim. Id.1
    1
    Blakely is not alone in his belief that summary judgment orders per se
    cannot constitute strikes for PLRA purposes. 3 Rights of Prisoners § 17:35
    (4th ed. 2011) states that "[s]ince the statute only counts dismissals for the
    three specified reasons, dismissals for any other reason will not count as
    a strike. Thus, a summary judgment dismissal would not count as a strike
    . . . ." Notably, however, the case cited for that blanket proposition, Barela
    v. Variz, 
    36 F. Supp. 2d 1254
     (S.D. Cal. 1999), does not support that con-
    clusion, but is instead much more nuanced. In Barela, the court refused
    to deem actions previously dismissed on summary judgment strikes
    because "none of these claims were, strictly speaking, terminated because
    BLAKELY v. WARDS                                7
    The same cannot be said here. Among the previously-
    dismissed suits the Court directed Blakely to address in this
    proceeding are four summary judgment orders that contain, as
    Blakely concedes, "language characterizing the summary
    judgment dismissal[s] as [ ] strike[s] because [they] ‘quali-
    fie[d] as a dismissal on the grounds that [they are] ‘frivolous,
    malicious, or fail[ ] to state a claim upon which relief may be
    granted.”" Appellant’s Br. at 20-21. Specifically, the orders at
    issue state that the actions: should "be considered [ ]
    ‘strike[s]’ for purposes of the ‘three strikes’ rule set forth in
    
    28 U.S.C. § 1915
    (g)" because they are "‘frivolous, malicious,
    or fail[ ] to state a claim upon which relief may be granted[,]’"
    J.A. 210; and "qualif[y] as [ ] dismissal[s] on the grounds that
    [they are] ‘frivolous, malicious, or fail[ ] to state a claim upon
    which relief may be granted’" and thus are properly "classif-
    [ied] as [ ] strikes . . . ." J.A. 246, 262, 299.
    Blakely would have this Court ignore what he characterizes
    as "boilerplate" language. Appellant’s Br. at 20. He fails,
    however, to offer any compelling reason why this Court
    should overlook the plain language in the pertinent orders
    written by the judges most familiar with his suits.
    Blakely proffers a judicial economy argument, maintaining
    that courts "should [not] attempt to discern the bases upon
    which a case was dismissed at summary judgment to deter-
    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 judg-
    ment." 
    Id.
     And the third and final summary judgment order was dismissed
    for failure to state a claim only as to one of multiple defendants. The court
    "f[ound] it unfair to penalize Plaintiff for including a defendant against
    whom he could not state a cause of action." 
    Id.
     In other words, the Barela
    court, too, focused on whether the earlier cases were dismissed because
    they were frivolous, malicious, or failed to state a claim and not on the
    procedural posture at dismissal.
    8                      BLAKELY v. WARDS
    mine if it is a strike." Reply Br. at 5. This Court shared Blake-
    ly’s concern in Tolbert, where we noted that "requir[ing]
    district courts to [ ] parse summary judgment orders and their
    supporting documents" to determine if the orders constituted
    strikes "would even further increase their workload, again
    straying far afield of the purpose of the PLRA." Tolbert, 
    635 F.3d at
    653 n.7. But the plain language of the four summary
    judgment dismissals at issue here belies any such concern.
    Those orders plainly state on their face that Blakely’s actions
    were frivolous, malicious, or failed to state a claim, i.e., that
    those actions met the statutory criteria for strikes. We fail to
    see why it would be more difficult for a court to look at the
    face of a summary judgment order, as opposed to the face of
    some other dismissal order, to determine whether a specific
    finding of frivolousness, maliciousness, or failure to state a
    claim was made.
    Blakely further looks to Thompson v. Drug Enforcement
    Administration, 
    492 F.3d 428
     (D.C. Cir. 2007), which was
    also cited in Richardson, for support. But Thompson does not
    further Blakely’s cause. Contrary to Blakely’s suggestion, in
    Thompson, the D.C. Circuit did not unequivocally hold that
    any dismissal at summary judgment cannot constitute a strike
    under Section 1915(g). Rather, the D.C. Circuit, analyzing
    whether a dismissal for failure to exhaust administrative rem-
    edies would count as a strike, observed:
    With regard to exhaustion, both section 1915(g)’s
    text and our desire for clarity point toward the same
    rule: if the court dismisses an unexhausted complaint
    on a Rule 12(b)(6) motion or if it dismisses the com-
    plaint sua sponte and expressly declares that the
    complaint fails to state a claim, the dismissal counts
    as a strike. But if the court dismisses the complaint
    on some other procedural mechanism, such as a Rule
    12(b)(1) motion or a motion for summary judgment,
    the dismissal will not count as a strike.
    BLAKELY v. WARDS                        9
    
    Id. at 438
    . The D.C. Circuit went on to emphasize that the lan-
    guage of a dismissal order, rather than the particular proce-
    dural stage at which an action is dismissed, controls the
    question of whether a dismissal constitutes a strike under Sec-
    tion 1915(g). See 
    id.
    It makes sense that the D.C. Circuit and this Court would
    not have focused on the procedural posture of an action at the
    time of dismissal to determine whether the dismissal counts
    as a strike. That is because Section 1915(g) does not differen-
    tiate amongst dismissals but instead simply states that if a
    prisoner has brought three or more actions or appeals "dis-
    missed on the grounds that [they were] frivolous, malicious,
    or fail[ed] to state a claim[,]" that prisoner generally may not
    proceed IFP. 
    28 U.S.C. § 1915
    (g).
    "In interpreting statutory language, words are generally
    given their common and ordinary meaning." Nat’l Coal. For
    Students With Disabilities Educ. & Legal Def. Fund v. Allen,
    
    152 F.3d 283
    , 288 (4th Cir. 1998) (quotation marks omitted).
    "We customarily turn to dictionaries for help in determining
    whether a word in a statute has a plain or common meaning."
    
    Id. at 289
    . According to Black’s Law Dictionary, "dismiss"
    means "to terminate (an action or claim) without further hear-
    ing, esp. before the trial of the issues involved." Black’s Law
    Dictionary 482 (7th ed. 1999).
    There is some argument, particularly in the legal academy,
    that summary judgment orders should not be called dismiss-
    als. See, e.g., Bradley Scott Shannon, A Summary Judgment
    Is Not a Dismissal!, 
    56 Drake L. Rev. 1
     (2007). Nothing
    before us, however, indicates that Congress had that academic
    distinction in mind in drafting Section 1915(g), and certainly
    courts do not follow such a rule—as reflected in both Tolbert
    and Thompson, in which this Court and the D.C. Circuit refer
    to disposition upon summary judgment as a dismissal. Tol-
    bert, 
    635 F.3d at 654
    ; Thompson, 
    492 F.3d at 438
    . Even
    Blakely refers to the summary judgment orders at issue here
    10                        BLAKELY v. WARDS
    as dismissals: In his brief, Blakely argues, for example, that
    his "prior cases that were dismissed on summary judgment are
    not strikes" and that "a case dismissed on summary judgment
    is not a strike . . . ." Appellant’s Br. at i (emphasis added).
    The fact that Section 1915(g) counts not only dismissed
    actions but also dismissed appeals as strikes underscores that
    strikes are not limited, as Blakely seems to suggest, to cases
    dismissed via Civil Procedure Rule 12(b)(6). If only Rule
    12(b)(6) dismissals could constitute strikes, dismissed
    appeals, subject not to the Federal Rules of Civil Procedure
    but rather to the Federal Rules of Appellate Procedure, would
    never count as strikes. Moreover, if only Rule 12(b)(6) dis-
    missals could constitute strikes, all strikes would be for failure
    to state a claim upon which relief may be granted. See Fed.
    R. Civ. P. 12(b)(6). Such a reading would render superfluous
    Section 1915(g)’s express statement that cases dismissed as
    frivolous or malicious also constitute strikes—a result we
    must avoid. See Discover Bank v. Vaden, 
    396 F.3d 366
    , 369
    (4th Cir. 2005) ("It is a classic canon of statutory construction
    that courts must ‘give effect to every provision and word in
    a statute and avoid any interpretation that may render statu-
    tory terms meaningless or superfluous.’" (quoting United
    States v. Ryan-Webster, 
    353 F.3d 353
    , 366 (4th Cir. 2003))).
    And it makes sense that frivolity and maliciousness may not
    be cognizable at the Rule 12(b)(6) stage, before any discovery
    has been conducted.2
    Our broader understanding of "dismiss" comports with the
    D.C. Circuit’s discussion in Thompson, in which the D.C. Cir-
    2
    Blakely’s Americans with Disabilities Act ("ADA") claim is a fine
    example of how a successfully stated claim may ultimately prove frivo-
    lous. Although Blakely’s complaint theoretically could have successfully
    stated a claim for which relief might have been granted (in reality it did
    not, according to the district court), Blakely ultimately "failed to prove
    that he is disabled . . . ." J.A. 208. Making an ADA claim without being
    disabled surely supports a frivolity determination and certainly supported
    the district court’s decision that that dismissal counted as a strike.
    BLAKELY v. WARDS                        11
    cuit explained that the word "dismiss" in Section 1915(g) is
    "most plausibly understood as a reference to section
    1915(e)(2), which requires the court to ‘dismiss the case at
    any time if the court determines that . . . the action or appeal
    . . . is frivolous or malicious; [or] fails to state a claim on
    which relief may be granted.’ 
    28 U.S.C. § 1915
    (e)(2)." 
    492 F.3d at 436
     (emphasis altered).
    Further, our focus on the grounds for dismissal rather than
    the procedural posture at the time of dismissal dovetails with
    the Congressional intent underpinning the PLRA. "The impe-
    tus behind the enactment of the PLRA was a concern about
    the ‘endless flood of frivolous litigation’ brought by inmates."
    McLean v. United States, 
    566 F.3d 391
    , 397 (4th Cir. 2009)
    (quoting 141 Cong. Rec. S14,418 (1995)). "To accomplish its
    goal of reducing the number of frivolous lawsuits, the PLRA
    placed three major hurdles in the path of prisoners seeking to
    challenge the conditions of their confinement." Green v.
    Young, 
    454 F.3d 405
    , 406-07 (4th Cir. 2006). One of those
    hurdles is the three-strikes provision at issue here, requiring
    "pre-payment in full of all filing fees if the plaintiff-prisoner
    has had three prior cases dismissed as frivolous, malicious, or
    for failure to state a claim for which relief may be granted,
    unless the prisoner is at imminent risk of serious physical
    injury." 
    Id. at 407
     (emphasis omitted). It would subvert the
    PLRA’s very purpose to restrict the dismissals that can count
    as strikes when cases dismissed on summary judgment may
    also be dismissed for frivolousness, maliciousness, and failure
    to state a claim. And this we must avoid. See De Osorio v.
    INS, 
    10 F.3d 1034
    , 1043 (4th Cir. 1993) ("the overriding duty
    of a court is to give effect to the intent of the legislature").
    In sum, we hold that if a summary judgment order states on
    its face that the district court considered the statutory criteria
    for a strike to have been met, then the summary judgment dis-
    missal should count as a strike. Because here, at least four
    summary judgment orders stated that Blakely’s suits were
    frivolous, malicious, or failed to state a claim for which relief
    12                       BLAKELY v. WARDS
    could be granted, i.e., that Blakely’s suits met Section
    1915(g)’s strike criteria, those orders count as strikes and bar
    Blakely from proceeding IFP on appeal.3
    III.
    For the foregoing reasons, Blakely’s motion for reconsider-
    ation is denied.
    DENIED
    3
    Blakely also makes various arguments as to why certain other orders
    should not be counted as strikes. Because our holding regarding the four
    summary judgment orders puts Blakely over Section 1915(g)’s three-
    strikes threshold, we need not, and therefore do not, address Blakely’s
    other arguments and orders.