Jeffery Paul v. Helen Marberry , 658 F.3d 702 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3670
JEFFREY W ILLIAM P AUL,
Plaintiff-Appellant,
v.
H ELEN J. M ARBERRY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:10-cv-180-WTL-TAB—William T. Lawrence, Judge.
S UBMITTED JULY 20, 2011—D ECIDED S EPTEMBER 6, 2011
Before P OSNER, K ANNE, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff, an inmate of a
federal prison in Indiana, seeks damages from prison
personnel who he claims violated his right under the
Eighth Amendment not to be subjected to cruel and
unusual punishments. He alleges that they used an
excess of force in removing him from his cell during a
shakedown and that having removed him they con-
fined him under unduly harsh conditions and refused
2 No. 10-3670
to provide medical care for the injuries he’d sustained as
a result of the force used against him. The district judge
denied the plaintiff’s motion to be allowed to proceed
in forma pauperis, on the ground that he had three
strikes, one for each of three previous civil suits brought
by him that had been dismissed. 28 U.S.C. § 1915(g). (Two
of those suits are called Paul v. United States District
Court. They are No. 2:09-cv-345-LJM-DML (S.D. Ind. Dec.
3, 2009), and No. 2:09-cv-347-LJM-DML (S.D. Ind. Dec. 3,
2009). The third is Paul v. United States, No. 2:09-cv-346-
RLY-WGH (S.D. Ind. Dec. 2, 2009).) The plaintiff failed
to pay the filing and docketing fees in full and so the
judge dismissed the suit, though without prejudice.
The statute we cited requires that a prisoner
prepay in full all filing and docketing fees in civil
actions and appeals if on three or more occasions while
in prison he had “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.” But the
three suits that the judge thought had cost the plaintiff
strikes had all been dismissed not as frivolous, malicious,
or failing to state a claim, but instead for failure to pros-
ecute. In each case the district judge had rightly found
the complaint to be “unintelligible” and dismissed it on
the basis of Fed. R. Civ. P. 8(a)(2), which requires that a
complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Typical is the claim in the second of the three cases in
which the plaintiff received a third strike: “Agencies of
the United States of America within or without protec-
No. 10-3670 3
tion of sovereign title did use sovereign privilege to
initiate dependent and oppressive situations of involun-
tary servitude, economic leverage and situations of, and
requiring contacts with or through mutually exclusive
people and places that by design or definition include
contingent actions of cession inconsolable to my charac-
ter. Previous to current request on this paper I claimed
and contributed to the record and in fact have main-
tained that my complaints to that extent resulted in
attacks and commitments to what anywhere else would
be considered a post or station and have incurred
criminal complaints as well as consecutive psycho-
somatic attacks and separations previous to the present
and the present situation actually and ideally.”
In each case the judge had granted leave to the
plaintiff to file an amended complaint that would be
intelligible, but the plaintiff had neither filed an
amended complaint nor otherwise responded and the
judge had then dismissed the case for want of prosecu-
tion, but without prejudice. There was actually a fourth
suit, also unintelligible, also dismissed for failure to
prosecute (again without prejudice), Paul v. United States,
No. 2:09-cv-349-WTL-TAB (S.D. Ind. Dec. 2, 2009), plus
two other unintelligible suits filed after the complaint in
this case (both also named Paul v. United States—No. 2:10-
cv-194-JMS-DML (S.D. Ind. Sept. 14, 2010), and No. 2:11-cv-
29-JMS-TAB (S.D. Ind. Feb. 15, 2011)), both again dis-
missed, one with and one without prejudice.
So: within a space of 13 months a prisoner files
seven suits (including the present one); in all but
4 No. 10-3670
one case the complaint is unintelligible; all are dis-
missed but none is dismissed for being frivolous or mali-
cious or failing to state a claim. Can he be permitted
to continue on this path until the statute of limitations
expires, without ever having to pay a filing or docketing
fee? His complaint in the present suit, which states
that another inmate wrote it for him, does state a claim,
but it was filed after four of his suits had been dismissed.
Dismissals because the plaintiff failed to prosecute
his case are deemed to be with prejudice unless the
order of dismissal states otherwise, Fed. R. Civ. P.
41(b)—but the orders in six of the seven cases, including
the present one, do state otherwise. Why the judges
dismissed five of those six cases without prejudice is
unexplained. (The dismissal of the present suit with-
out prejudice was correct, however, since if the plaintiff
files the required filing and docketing fees there is
no reason he shouldn’t be allowed to reinstate the suit.)
But it doesn’t matter, because all that “dismissal without
prejudice” means is that the plaintiff can refile his suit
if he corrects the error or other deficiency that caused
the suit to be dismissed. A dismissal is a dismissal, and
provided that it is on one of the grounds specified in
section 1915(g) it counts as a strike, Evans v. Illinois Dep’t
of Corrections, 150 F.3d 810, 811 (7th Cir. 1998), whether
or not it’s with prejudice. E.g., Smith v. Veterans Admin-
istration, 636 F.3d 1306, 1313 (10th Cir. 2011); O’Neal v.
Price, 531 F.3d 1146, 1154-55 (9th Cir. 2008).
The Fourth Circuit, it is true, has held that when the
ground for a dismissal is failure to state a claim, the
No. 10-3670 5
dismissal cannot be a strike if it is without prejudice.
McLean v. United States, 566 F.3d 391, 396-97 (4th Cir.
2009). The concern is that by dismissing without
prejudice a suit for failure to state a claim, a judge
might not really mean that the complaint failed to
state a claim; he might mean just that the claim was “po-
tentially meritorious but inartfully pleaded.” Id. at 397.
So “without prejudice” may be an aid in interpreting
a dismissal—may show that the stated ground was mis-
leading—but normally a dismissal of a suit because the
suit is frivolous or malicious, or fails to state a claim,
is with prejudice and therefore unambiguously based
on a ground in section 1915(g). See Gladney v. Pendleton
Correctional Facility, 302 F.3d 773, 775 (7th Cir. 2002).
If, as seems to have been the situation in the Fourth
Circuit’s case, a judge dismisses a complaint because
he can’t tell whether it states a claim, and thus explicitly
or implicitly invites the plaintiff to amend the com-
plaint and the plaintiff does so, the dismissal is interlocu-
tory; the amendment keeps the suit going rather than
initiating a new suit. So—we imagine all courts would
agree—the dismissal of the first complaint is not a
strike. But when, as in each of the three cases on which
the judge in the present case based his three-strike
finding, the plaintiff is told to amend his unintelligible
complaint and fails to do so, the proper ground of dis-
missal is not want of prosecution but failure to state
a claim, one of the grounds in section 1915(g) for calling
a strike against a prisoner plaintiff.
In each of the three cases the initial complaint was
“simply incomprehensible and thus failed to disclose
6 No. 10-3670
the presence or absence of a claim for which relief might
be granted by a federal court.” Okoro v. Bohman, 164 F.3d
1059, 1063 (7th Cir. 1999); see also United States ex rel.
Cafasso v. General Dynamics C4 Systems, Inc., 637 F.3d 1047,
1059 (9th Cir. 2011) (733-page complaint!); Anderson v.
U.S. Dep’t of Housing & Urban Development, 554 F.3d 525,
528-29 (5th Cir. 2008); Tucker v. Middleburg-Legacy Place,
539 F.3d 545, 551 (6th Cir. 2008). Dismissal of such a
claim is required by Rule 8(a)(2), which in requiring
that the statement of a claim be “plain” requires that it
be intelligible. Vicom, Inc. v. Harbridge Merchant Services,
Inc., 20 F.3d 771, 775-76 (7th Cir. 1994); United States ex rel.
SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 503 (6th Cir.
2008); Ruiz-Rosa v. Rullan, 485 F.3d 150, 154 (1st Cir.
2007). Ordinarily, it is true, when a complaint contains
“amorphous” claims that fail to give the defendant “fair
notice” and so must be dismissed under that rule, the
“plaintiff should be given a chance to amend his com-
plaint to demonstrate whether some legally sufficient
claim lies hidden beneath the obscure allegations.” Pamel
Corp. v. Puerto Rico Highway Authority, 621 F.2d 33, 36
(1st Cir. 1980); see also Ciralsky v. CIA, 355 F.3d 661, 670
(D.C. Cir. 2004). But the plaintiff gets that chance—our
plaintiff got it—automatically because dismissal under
Rule 8(a)(2) is the dismissal of a complaint (or portions
of a complaint), not of the case. EEOC v. Concentra
Health Services, Inc., 496 F.3d 773, 782 (7th Cir. 2007);
Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995);
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
Having been given that chance, however, and having
failed to take it, the plaintiff should in each of the three
No. 10-3670 7
cases have been shut down, his suit dismissed for failure
to state a claim; for in each case all the judge was left
with was a complaint that, being irremediably unintel-
ligible, gave rise to an inference that the plaintiff could
not state a claim. Dismissal under Rule 12(b)(6) was the
proper course. E.g., United States ex rel. Garst v. Lockheed-
Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003); Destfino v.
Reiswig, 630 F.3d 952, 959 (9th Cir. 2011).
An inference of “malice” (an independent ground for
calling a strike) could also be drawn if, as possibly demon-
strated by this plaintiff’s repeated filing of unintelligible
complaints, the prisoner’s conduct indicates that he “in-
tended to harass,” as in Lindell v. McCallum, 352 F.3d
1107, 1109 (7th Cir. 2003).
Judge Lawrence described the three earlier cases as
each having been “dismissed on the grounds that it
was frivolous or failed to state a claim.” They indeed
failed to state a claim and each should have been
dismissed with prejudice on that ground.
That said, we think the plaintiff was entitled to take
the previous dismissals at face value, and since none of
them was based on any of the grounds specified in
section 1915(g), to infer that he was not incurring
strikes by the repeated dismissals. The statute is explicit,
and the case law confirms, see, e.g., Haury v. Lemmon,
No. 11-2148, slip op. at 4-5 (7th Cir. Aug. 25, 2011) (per
curiam); Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007), that
classifying a dismissal as a strike depends on the
grounds given for it; since most prisoners litigate their
civil claims pro se, they should not be required to
8 No. 10-3670
speculate on the grounds the judge could or even
should have based the dismissal on. It is true that had
the plaintiff appealed any of his previous dismissals, we
might have affirmed on a ground, different from the
district judge’s, that would have given him a strike.
Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). But
that is different from giving a prisoner a strike, especially
a third strike, when no court had mentioned a ground
for dismissal specified in the statute for calling a strike.
We reverse the judgment of the district court and
remand for further proceedings consistent with this
opinion.
R EVERSED AND R EMANDED.
9-6-11