James Blakely v. Robert Wards ( 2013 )

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 5-
6” 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”
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
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,
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
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. He
contends that his prior actions dismissed as “frivolous,
malicious, or fail[ing] to state a claim” cannot count as
strikes under Section 1915(g) because these dismissals occurred
at summary judgment. But neither the statute itself nor
precedent supports Blakely’s contention. 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 cases dismissed expressly as frivolous, malicious, or
failing to state a claim, we deny his motion for
reconsideration.
3
I.
Blakely, a prisoner in a South Carolina correctional
institution, has pursued numerous lawsuits in federal and state
courts, including multiple appeals in this Court. In 2010,
Blakely filed the underlying Section 1983 action against
Defendants, including South Carolina officials such as counsel
for the Department of Corrections and “Lee Correctional
Institution” employees such as the facility’s librarian and
chaplain. Blakely alleged various constitutional 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. After Blakely moved for reconsideration, this Court
assigned Blakely counsel and directed the parties to brief
whether certain previously-dismissed suits constitute 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. Rather, we
4
consider only whether Blakely should be allowed to proceed in
forma pauperis on appeal. 1
II.
A.
Several of Blakely’s previously-dismissed suits were
terminated at summary judgment. Blakely contends that such
summary judgment dismissals, as a matter of law, cannot
constitute strikes under 28 U.S.C. § 1915(g). We review this
question of law de novo. Tolbert v. Stevenson, 635 F.3d 646,
649 (4th Cir. 2011).
The section of the PLRA at issue here, known as the three-
strikes 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). In other words, if a
prisoner has had three prior cases dismissed as frivolous,
1
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
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 has had more than three prior cases
terminated at summary judgment expressly as frivolous,
malicious, or failing to state a claim. At the heart of this
appeal is the meaning of the word “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). Doing so here reveals that
“dismiss” means “to terminate (an action or claim) without
6
further hearing, esp. before the trial of the issues involved.”
Black’s Law Dictionary 482 (7th ed. 1999). See also, e.g., The
American Heritage Dictionary 520 (4th ed. 2009) (“To put (a
claim or action) out of court without further hearing.”).
Summary judgments can do precisely that: They can
terminate cases without a trial. 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 call summary
judgments terminating actions dismissals. See, e.g., Bell v.
Thompson, 545 U.S. 794, 798 (2005) (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
Broad. Sys., Inc., 368 U.S. 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. See,
e.g., Bradley Scott Shannon, A Summary Judgment Is Not a
Dismissal!, 56 Drake L. Rev. 1 (2007). 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.” As the D.C.
8
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).” 492
F.3d at 436 (emphasis altered). Logically, if a court must
dismiss such a case at any time, it may do so at any procedural
posture, including summary judgment.
Further, per Section 1915(a)—a general provision predating
the PLRA—a court “may authorize,” i.e., has the discretion to
allow, the commencement of a suit without prepayment of fees.
28 U.S.C. § 1915(a) (“[A]ny court of the United States may
authorize the commencement, prosecution or defense of any suit,
action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees or security therefor . . . .”). We
agree with the D.C. Circuit that “our authority to deny IFP
status to a prisoner who has abused the privilege is clear. . .
.” Butler v. Dep’t of Justice, 492 F.3d 440, 445 (D.C. Cir.
2007) (noting that the Supreme Court went “so far as to say that
courts have ‘a duty to deny in forma pauperis status to those
individuals who have abussed the system’” in In re Sindram, 498
U.S. 177 (1991) (per curiam)). Thus, under Section 1915(a),
9
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, or for failing to state a claim. 28
U.S.C. § 1915(g). 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 understanding of “dismiss” dovetails seamlessly with
the legislative intent underpinning the PLRA. “The impetus
behind the enactment of the PLRA was a concern about the
‘endless flood of frivolous litigation’ brought by inmates.”
McLean v. United States, 566 F.3d 391, 397 (4th Cir. 2009)
(quoting 141 Cong. Rec. S14, 418 (1995)). “To accomplish its
goal of reducing the number of frivolous lawsuits,” Congress
2
We leave for another day the question of what standard
should apply in determining how such discretion should be
exercised.
10
imposed on prisoners, among other hurdles, the three-strikes
limitation to proceeding in forma pauperis. Green v. Young, 454
F.3d 405, 406-07 (4th Cir. 2006). 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. And this we
must avoid. See De Osorio v. INS, 10 F.3d 1034, 1043 (4th Cir.
1993) (stating “‘the overriding duty of a court is to give
effect to the intent of the legislature’”).
Therefore, in keeping with Section 1915(g)’s plain
language, we hold that a summary judgment dismissal stating on
its face that the dismissed action was frivolous, malicious, or
failed to state a claim counts as a strike for purposes of the
PLRA’s three-strikes provision. 3
B.
Blakely nevertheless asserts that in Tolbert, 635 F.3d 646,
“this Circuit” established “a bright-line rule that a case
dismissed on summary judgment is not a strike under § 1915(g).”
Appellant’s Br. at 19. We do not agree. 4
3
Whether a court rings the PLRA bell in its opinion or
judgment order is immaterial, so long as the summary judgment
dismissal is explicitly predicated on one of the three grounds
enumerated in Section 1915(g).
4
Blakely is not alone in his belief that summary judgment
orders per se cannot constitute strikes for PLRA purposes. 3
(Continued)
11
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
Tolbert did not present this Court with the question now
before us—that is, whether a summary judgment dismissal
expressly stating that the underlying suit “is 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 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 upon which relief may be granted . . . .” 28 U.S.C. §
1915(g). It follows, then, that the Lightsey summary judgment
could 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. 635 F.3d at
654. Accordingly, the Court’s statement about the Lightsey
13
summary judgment was irrelevant to the outcome of the Tolbert
three strikes analysis, i.e., it was mere dictum. Id. at 654-
55. 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 776 (emphasis added). Significantly, the Court made
clear with the word “because” that the reason the summary
judgment dismissal did not constitute a strike was not its
procedural posture but rather its failure to ring the PLRA bells
of frivolous, malicious, or failure to state a claim. Id.
14
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 suit was frivolous,
malicious, or failed to state a claim. Quite the opposite: The
Court clarified that what matters for three-strikes purposes is
15
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. Thompson, 492 F.3d at
436. 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
dismissal but rather on whether the dismissal rang the PLRA
bells of frivolous, malicious, or failure to state a 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. Id. That is precisely what we are doing here.
This Court has advocated such an approach before—in
Tolbert. There, we stated that a case “dismissed, in its
entirety, upon a motion for judgment on the 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 the word dismiss 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 a Rule 12(c) dismissal can
17
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[] to state a claim upon
which relief may be granted . . . .” 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). This
court holds that this case qualifies as a dismissal 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
claim upon which relief may 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).” J.A. 246, 262, 299.
Blakely invites us to reopen these summary judgment
dismissals. But the window for challenging the dismissals,
which hail from 1999 and 2000, has long since closed, and they
are, therefore, final. Cf. Henslee v. Keller, 681 F.3d 538, 541
(4th Cir. 2012). 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). Accordingly, we look at the face of
each dismissal simply to determine whether it terminated an
action explicitly “on the grounds that it is 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
19
fails to state a claim upon which relief may be granted.’” J.A.
210. This language essentially mirrors Section 1915(g), stating
that an action or appeal “dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted” constitutes a strike. 28 U.S.C. §
1915(g). 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 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.
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 there was an explicit
20
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).” Byrd, 715
F.3d at 126. 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.
21
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.
22
At times the dissent seems to suggest that Civil Procedure
Rule 12(b) is at the root of all “actual dismissals.” Id. at
47. 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. Is a judgment on the pleadings a
dismissal? In Tolbert, a unanimous panel writing for this Court
certainly indicated that it is. 655 F.3d at 654 n.9. Is a Rule
11 sanction of dismissal an “actual dismissal”? Post at 47. Or
are the many courts that have styled Rule 11 sanctions 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
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
24
they were frivolous, 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 to state a claim, and not the case’s procedural
posture at dismissal, determines whether the dismissal
constitutes a strike. Because Blakely has had more than three
prior cases 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
25
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 with the majority. Both opinions, moreover,
recognize that § 1915(g) and § 1915(a) serve distinct but
complementary functions. See maj. op. at 9-10. Here the
discretionary denial inquiry cuts the Gordian Knot –- and in
doing so, protects the federal courts from the most abusive
litigants. As a review of Blakely’s extensive litigation
history makes plain, this is a paradigm example of the type of
26
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 prisoners, § 1915(g) provides that “in no event shall a
prisoner” be entitled to IFP status in his action or appeal if
27
“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 proceed to a second inquiry through which they
possess the power to deny IFP filing status at their own
discretion. 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. 28
U.S.C. § 1915(a)(1) (emphasis added). Notably, the 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
28
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, the D.C. Circuit relied on its discretionary
authority to deny IFP status to a prisoner in Butler v.
Department of Justice, even though the prisoner in that case had
not run afoul of the mandatory three-strikes rule. 492 F.3d
440, 444-45 (D.C. Cir. 2007). In doing so, the court echoed the
Supreme Court’s reasoning 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. Still more recently, in May 2013, the Supreme Court
issued a discretionary denial of IFP status in Cardona v.
Thomas, explaining that it would not accept “any 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).
29
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.” Butler, 492 F.3d at 445; see also, e.g., In re
Anderson, 511 U.S. 364, 365 (1994) (per curiam) (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 several of which were repetitive and
“patently frivolous”). Applying that standard here, Blakely’s
profligate filing 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. June 20, 2003). That 2003 denial of his IFP request
precipitated a period of repose from Blakely’s onslaught of
federal court filings, as Blakely avers that until 2011, he
30
“waited over 7 years to file anything in federal court.” J.A.
at 14.
It seems, however, that Blakely did not stop filing
lawsuits altogether in the intervening timeframe. Appellees
explain that he instead began filing suits in state court,
apparently commencing some 26 actions in the Richland County
South Carolina Court of Common Pleas alone. Appellees’ Brief at
5. 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 court after our 2003 denial of his IFP
privileges. Blakely also contends that these state 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. See id.
But even if his decision to subject the state 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 Blakely has recently resumed filing cases in
federal court with gusto: in 2012 alone, he filed nine
31
additional actions in South Carolina district court. Blakely v.
Andrews, No. 5:12-cv-03004-MGL (D.S.C. filed Oct. 18, 2012);
Blakely v. Cartledge, No. 5:12-cv-02649-MGL-KDW (D.S.C. filed
Sept. 14, 2012); Blakely v. Greenville Cnty., No. 6:12-cv-02587-
MGL (D.S.C. filed Sept. 7, 2012); Blakely v. Moore, No. 5:12-cv-
02270-MGL (D.S.C. filed Aug. 9, 2012); Blakely v. Thompson, No.
5:12-cv-02150-MGL (D.S.C. filed Aug. 1, 2012); Blakely v.
Hallman, No. 5:12-cv-01289-MGL (D.S.C. filed May 17, 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.” Appellant’s Reply
Br. at 25. 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),
32
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 actions, also militates against Blakely’s IFP
application. 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 has
prevailed in any of his more recently filed federal actions. 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. See Blakely v.
Greenville Cnty. Judicial Sys., No. 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
request was that the presiding judge violated the Double
Jeopardy Clause by allowing a homicide 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), our court is free to consider the language as a
negative comment on the substance of Blakely’s claims 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
34
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 almost ten meritless
lawsuits in a single calendar year. This pattern of abuse is
scarcely mentioned by the dissent. It appears of little moment,
something Congress would not 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 to
§ 1915(a)(1) that is nowhere in the statutory text. According
to the dissent, courts may deny IFP status only if the criteria
under § 1915(g) are met. See dissenting op. at 53-54
(delineating § 1915(g) as the sole operative 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
35
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 completely swallow up the
separate provision in § 1915(a)(1). See dissenting op. at 53-
54. This ignores the fact that we are expected to give effect
to all provisions in a statute, not just some. It also
overlooks the distinctive and 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. The provisions
function in tandem, and they manifestly 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
36
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 multi-
factor 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.
37
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.
38
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 abusive filings, although I cannot endorse its
reasoning. Like the dissent, I believe that a summary-judgment
disposition cannot constitute a strike under 28 U.S.C. §
1915(g). I must part company with the dissent, however, due to
its surprising assertion that the Prison Litigation Reform Act
of 1995 (“PLRA”) sub silentio limits both district courts’
preexisting statutory discretion under § 1915(a) 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
39
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 concurrence implicitly
recognize, it is unnecessary. 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 an unnecessary exercise on behalf of a prisoner-
litigant who has abused the privilege of IFP status to the
extent that Mr. Blakely has. Courts can address this type of
case by exercising their authority under § 1915(a) without
straining the meaning of the term “dismiss” in § 1915(g). The
PLRA, after all, was intended to constrain litigants, not
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
40
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. Nowhere
does the PLRA curtail courts’ preexisting discretionary
authority. ∗ Furthermore, Tolbert v. Stevenson, 635 F.3d 646 (4th
Cir. 2011), 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.” Id.
As the separate concurrence recognizes, there is a
compelling alternative route to the majority’s result. Thus, a
broad interpretation of “dismissed” pushes the statutory
language further than Congress intended for no 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).
41
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.” Bounds v.
Smith, 430 U.S. 817, 821 (1977). Certainly, that right is not
without limits. 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. In doing so, the majority improperly restricts
access to the 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
relief may be granted.” Id. (emphasis added). The plain
language of § 1915(g) thus states that only cases that are
“dismissed” can constitute strikes. 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.” Engine Mfrs. Ass’n v. S. Coast Air
Quality Mgmt. Dist., 541 U.S. 246, 252 (2004) (internal
quotation marks and citation omitted). 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.” Thompson v. DEA, 492 F.3d 428, 438 (D.C. Cir.
2007). “But if the court dismisses the complaint on some other
43
procedural mechanism, such as . . . a motion for summary
judgment, the dismissal will not count as a 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 that at least three circuits, and
numerous district courts, simply have assumed as much in
unpublished opinions. 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 that cases
resolved on summary judgment count as strikes. Neither of the
rationales offered for doing so is persuasive.
44
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.” Black’s Law Dictionary 482 (7th ed.
1999). But neither imprecise common usage nor an overbroad
dictionary definition can eliminate a lesson learned in the
first year of law school: dismissal and summary judgment differ
in important respects. Both can terminate an action, but a case
resolved by summary judgment is not “dismissed.”
In the very context of the three-strikes rule, we have
emphasized that “[w]hen Congress directly incorporates language
with an established legal meaning into a statute, we may infer
that Congress intended the language to take on its established
meaning.” McLean v. United States, 566 F.3d 391, 396 (4th Cir.
2009); accord Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990)
(“We assume that Congress is aware of existing law when it
passes legislation.”).
The word “dismissed” in § 1915(g), particularly “coupled
with the words ‘[for] fail[ure] to state a claim upon which
45
relief may be granted,’ . . . has a well-established legal
meaning.” See McLean, 566 F.3d at 396. And that well-
established legal meaning obviously differs from the equally
well-established legal meaning of summary judgment. 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 including frivolity, maliciousness, and failure to
state a claim); id. § 1915A(b) (same); 42 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.” See ante at 3, 9, 15. Even if this were
so, this is not an insignificant difference. Rather,
“procedural posture” may make all the difference. 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.”
46
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, nature of relevant evidence, appealability,
preclusive effect, etc.). And, contrary to the majority’s
suggestion, these differences are well recognized. 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
47
strikes into the [statute]. We have neither the authority nor
inclination to substitute 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. It maintains that there is no
indication Congress had in mind at the time the “academic”
distinction between dismissal and summary 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, that reducing
frivolous suits was but a means to an end: by enacting the
PLRA, Congress intended most fundamentally to reduce the burden
on overworked courts. See id. (“The crushing burden of these
frivolous suits makes it difficult for courts to consider
48
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, again
straying far afield of the purpose of the PLRA.” 635 F.3d at
653 n.7.
Other courts, too, have recognized the need for bright-line
rules for identifying strikes to avoid increasing courts’
workloads in contravention of the PLRA’s purpose. See, e.g.,
Byrd v. Shannon, 715 F.3d 117, 125 (3d Cir. 2013) (stating that
49
rules “reducing litigation on whether a particular dismissal
constitutes a strike” serve the 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. My colleagues
would treat a case disposed of by 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 asserted
limitation, however, runs into a different problem. 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. See Fed. R. Civ. P. 56
(permitting summary judgment on the basis that “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law”). The majority’s view
50
thus forces appellate courts into an untenable catch-22:
rubberstamp district court decisions on issues not strictly
before them or expend time and energy to decide these issues
independently.
Limiting strikes to actual dismissals avoids this
conundrum. 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 recognizing the defects in the majority’s
rationale, a group of my colleagues join a long concurrence
offering a second theory for denying Blakely IFP status. The
concurrence, of course, is only dicta, without precedential
51
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 of such discretion would defy the clear and
unambiguous legislative history and the very purpose of 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.
52
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 judicial task of reconciling many laws
enacted over time . . . necessarily assumes that the
implications of a statute may be altered by the
implications of a later statute. This is particularly
so where the scope of the earlier statute is broad but
53
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) (internal citation and quotation marks
omitted). The concurrence simply ignores these long-established
principles. Undoubtedly, this is because, if properly applied,
those principles lead to but one conclusion: the PLRA’s
specific three-strikes scheme for abusive prisoner-litigants
must govern any more general authority 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).
54
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)
55
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 that the petitioner’s present case is
frivolous. 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.
56
Court has never suggested 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 sum, the concurrence refuses to recognize that the
PLRA’s specific three-strikes rule displaced any 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 undermine the most fundamental
promise of our legal system: 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
57
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.” In re
McDonald, 489 U.S. 180, 184 (1989) (per curiam). Regrettably,
my colleagues disregard this value. 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.
58
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). However, I would not use that
discretion in this case. Such denial implicates the fundamental
right of access to the courts. “[T]he ability to seek
regularized resolution of conflicts” is fundamental to “an
organized and cohesive society.” See Boddie v. Connecticut, 401
U.S. 371, 374 (1971). As such, our discretionary power should
be used sparingly. For example, discretionary denial of IFP
status would be appropriate where an individual files dozens of
abusive claims but strategically withdraws them in order to
avoid accruing strikes under § 1915(g). While there is
certainly evidence that Appellant is a prolific filer, there is
no evidence of strategic maneuvering, nor evidence that
Appellant’s past cases were abusive. Without such evidence of a
longstanding, clear pattern of abusive filings, denial of IFP
59
status under § 1915(a) is inappropriate. For the foregoing
reasons, I dissent.
60