McLean v. United States

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

QUENTIN MCLEAN, 

Plaintiff-Appellant,

v.

 No. 06-7784

UNITED STATES OF AMERICA; UNITED

STATES CONGRESS,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Robert G. Doumar, Senior District Judge.

(2:06-cv-00447-RGD)

Argued: September 23, 2008

Decided: May 21, 2009

Before MICHAEL, GREGORY, and SHEDD,

Circuit Judges.

Affirmed by published opinion. Judge Michael wrote the

opinion, in which Judge Gregory joined. Judge Shedd wrote

a separate opinion concurring in part and dissenting in part.

COUNSEL

ARGUED: Charlotte Garden, Student Counsel, GEORGE-

TOWN UNIVERSITY LAW CENTER, Appellate Litigation

2 MCLEAN v. UNITED STATES

Program, Washington, D.C., for Appellant. Joel Eric Wilson,

OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,

Virginia, for Appellees. ON BRIEF: Steven H. Goldblatt,

Director, Colin D. Forbes, Student Counsel, Benjamin D.

Schuman, Student Counsel, GEORGETOWN UNIVERSITY

LAW CENTER, Appellate Litigation Program, Washington,

D.C., for Appellant. Chuck Rosenberg, United States Attor-

ney, Alexandria, Virginia, for Appellees.

OPINION

MICHAEL, Circuit Judge:

The Prison Litigation Reform Act of 1996 (PLRA or Act),

Pub. L. No. 104-134, 110 Stat. 1321-71 (1996), limits the

ability of prisoners to file civil actions without prepayment of

filing fees. When a prisoner has previously filed at least three

actions or appeals that were dismissed on the grounds that

they were frivolous, malicious, or failed to state a claim upon

which relief may be granted, the Act’s "three strikes" provi-

sion requires that the prisoner demonstrate imminent danger

of serious physical injury in order to proceed without prepay-

ment of fees. 28 U.S.C. § 1915(g). The main issue before us

today is whether a dismissal without prejudice for failure to

state a claim counts as a strike under § 1915(g). We hold that

it does not. Four of the six previous actions filed by Quentin

McLean, the plaintiff-appellant in this case, were dismissed

without prejudice for failure to state a claim. As a result,

McLean is not a three-striker, and he may proceed in this

appeal without the prepayment of filing fees. His substantive

claim must be rejected, however. McLean attempts to sue the

United States and the United States Congress, asserting that

a statute of limitations provision in the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-

132, 110 Stat. 1214 (1996), is retroactive and therefore uncon-

stitutional. Because the United States and its Congress are

MCLEAN v. UNITED STATES 3

immune from such a suit, we affirm the district court’s dis-

missal of McLean’s complaint.

I.

The PLRA requires a district court to engage in a prelimi-

nary screening of any complaint in which a prisoner seeks

redress from a governmental entity or an officer or employee

of a governmental entity. 28 U.S.C. § 1915A(a) (2000). The

court must identify "cognizable claims or dismiss the com-

plaint, or any portion [thereof, that] is frivolous, malicious, or

fails to state a claim upon which relief may be granted." 28

U.S.C. § 1915A(b)(1) (2000). The "three strikes" provision of

the PLRA, § 1915(g), denies in forma pauperis (IFP) status to

any prisoner who:

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 dis-

missed 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 dan-

ger of serious physical injury.

28 U.S.C. § 1915(g) (2000).

On August 3, 2006, McLean, a state prisoner in Virginia,

filed a pro se action under 42 U.S.C. § 1983 against the

United States and the United States Congress in the Eastern

District of Virginia. He challenged as retroactive, and there-

fore unconstitutional, § 2244(d) of AEDPA, which imposes a

statute of limitations on a state prisoner seeking to file a

habeas corpus petition in federal court. See 28 U.S.C.

§ 2244(d). On the same day, McLean filed a motion for leave

to proceed IFP. The district court proceeded directly to the

preliminary screening of McLean’s complaint as required by

§ 1915A(a) and dismissed it for failure to state a claim.

McLean v. United States, No. 2:06-cv-00447 (E.D. Va. Sept.

4 MCLEAN v. UNITED STATES

12, 2006). The court concluded that McLean’s motion to pro-

ceed IFP was moot in light of the dismissal under § 1915A.

After filing a notice of appeal, McLean filed a motion in

this court to proceed IFP. Because of McLean’s prisoner sta-

tus our clerk’s office treated his IFP motion as moot and

required him to file a separate application—on our form—for

leave to proceed without prepayment of fees in accordance

with the PLRA.

The PLRA application form required McLean to state

whether he had, while incarcerated, filed three actions or

appeals that were dismissed as frivolous or malicious or for

failure to state a claim. McLean responded in the affirmative

and, as required, listed the names and docket information for

five such actions. The PLRA application form then instructed

McLean to state "facts in support of any claim" that he was

"under imminent danger of serious physical injury." Appel-

lant’s Application for Leave to Proceed Without Prepayment

of Filing Fees 1, No. 06-7784 (4th Cir. Nov. 16, 2006).

McLean responded:

My continue [sic] incarceration will subject me to

psychological turmoil, worriation [sic], disturbances

with thoughts – my deteriorating healthcare prob-

lems inadequately treated, exposures to unhealthy

environment repeated government employees [sic]

corruption and grown hate againts [sic] me, and loss

of equality and rights of men Art. 1 sec. 1.

Id.

Once McLean’s PLRA application was filed, the clerk

entered an order conditionally granting him leave to proceed

without full prepayment of fees. The order stated that it was

"subject to rescission or revision at any time should the court

determine that appellant has had three cases dismissed as friv-

olous, malicious, or for failure to state a claim and appellant

MCLEAN v. UNITED STATES 5

is not under imminent danger of serious physical injury."

McLean v. United States, No. 06-7784 (4th Cir. Nov. 29,

2006) (order conditionally granting appellant’s motion for

leave to proceed without prepayment of filing fees).

A review of McLean’s litigation history reveals that while

incarcerated in Virginia, he had filed six non-habeas actions

that were dismissed on grounds that might qualify them as

strikes under § 1915(g). Specifically, all six actions were dis-

missed for failure to state a claim upon which relief can be

granted. Four were dismissed without prejudice and the

remaining two were simply dismissed, with one order noting

that the dismissal counted as a strike for PLRA purposes.1

II.

McLean’s present appeal challenges the dismissal of his

§ 1983 action contesting the enactment of AEDPA’s statute of

1

(1) McLean v. Michael, No. 7:98-cv-00119 (W.D. Va. Feb. 23, 1998)

(dismissed without prejudice for failure to state a claim upon which relief

can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)); motion to

reopen time to file appeal denied; aff’d 205 F.3d 1334 (4th Cir. 1999)

(unpublished table opinion); (2) McLean v. Flemming, No. 7:98-cv-00731

(W.D. Va. Jan. 13, 1999) (dismissed without prejudice for failure to state

a claim upon which relief can be granted pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii)); (3) McLean v. Bolling, No. 7:99-cv-00221 (W.D. Va.

May 10, 1999) (dismissed without prejudice for failure to state a claim

upon which relief can be granted pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii)); (4) McLean v. Faust, No. 2:99-cv-00625 (E.D. Va.

June 2, 1999) (dismissed for failure to state a claim upon which relief can

be granted; court noted that dismissal for failure to state a claim would be

considered a strike under 28 U.S.C. § 1915(g)), aff’d 202 F.3d 259 (4th

Cir. 1999) (unpublished table opinion); (5) McLean v. Schillin, No. 7:99-

cv-00319 (W.D. Va. July 20, 1999) (dismissed without prejudice for fail-

ure to state a claim upon which relief can be granted pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii)); (6) McLean v. Bolling, No. 7:99-cv-00341 (W.D.

Va. July 26, 1999) (dismissed for failure to state a claim upon which relief

can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), aff’d sub nom.

McLean v. Angelone, 202 F.3d 259 (4th Cir. 1999) (unpublished table

opinion).

6 MCLEAN v. UNITED STATES

limitations. We reach the merits of his appeal only if he is eli-

gible to proceed without prepayment of fees under § 1915 (the

IFP statute). To resolve the eligibility issue, we must deter-

mine whether he has fewer than three prior dismissals that

count as strikes or, if not, whether he is in imminent danger

of serious physical injury. The determination of whether

McLean is a three-striker under § 1915(g) turns on whether a

dismissal without prejudice for failure to state a claim counts

as a strike. We conclude for the following reasons that such

a dismissal is not a strike.

A.

Section 1915(g) includes in its list of strikes an action or

appeal "that was dismissed on the grounds that it . . . fails to

state a claim upon which relief may be granted." 28 U.S.C.

§ 1915(g). In interpreting this provision, we must first deter-

mine whether its language "has a plain and unambiguous

meaning with regard to the particular dispute in the case."

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). "The

plainness or ambiguity of statutory language is determined by

reference to the language itself, the specific context in which

that language is used, and the broader context of the statute

as a whole." Id. at 341. "Our inquiry must cease if the statu-

tory language is unambiguous and ‘the statutory scheme is

coherent and consistent.’" Id. at 340 (quoting United States v.

Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)).

Our task here is to determine whether Congress intended an

action or appeal "that was dismissed on the grounds that it . . .

fails to state a claim upon which relief may be granted" to

count as a strike under 28 U.S.C. § 1915(g) if that dismissal

was specifically designated to be "without prejudice." The

language "fails to state a claim upon which relief may be

granted" in § 1915(g) closely tracks the language of Federal

Rule of Civil Procedure 12(b)(6). Compare Fed. R. Civ. P.

12(b)(6) (listing "failure to state a claim upon which relief can

be granted" as grounds for dismissal). When Congress

MCLEAN v. UNITED STATES 7

directly incorporates language with an established legal mean-

ing into a statute, we may infer that Congress intended the

language to take on its established meaning. United States v.

Langley, 62 F.3d 602, 605 (4th Cir. 1995) ("It is firmly

entrenched that Congress is presumed to enact legislation with

knowledge of the law; that is with the knowledge of the inter-

pretation that courts have given to an existing statute."); see

also Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990)

("We assume that Congress is aware of existing law when it

passes legislation.").

When the word "dismissed" is coupled with the words

"[for] fail[ure] to state a claim upon which relief may be

granted," the complete phrase has a well-established legal

meaning. Courts have held that, unless otherwise specified, a

dismissal for failure to state a claim under Rule 12(b)(6) is

presumed to be both a judgment on the merits and to be ren-

dered with prejudice. See Federated Dep’t Stores, Inc. v. Moi-

tie, 452 U.S. 394, 399 n.3 (1981) ("The dismissal for failure

to state a claim under Federal Rule of Civil Procedure

12(b)(6) is a ‘judgment on the merits.’"); Carter v. Norfolk

Cmty. Hosp. Ass’n, 761 F.2d 970, 974 (4th Cir. 1985) ("A dis-

trict court’s dismissal under Rule 12(b)(6) is, of course, with

prejudice unless it specifically orders dismissal without preju-

dice."); U.S. ex rel. Karvelas v. Melrose-Wakefield Hosp., 360

F.3d 220, 241 (1st Cir. 2004) ("[I]n the absence of a clear

statement to the contrary, a dismissal pursuant to Fed. R. Civ.

P. 12(b)(6) is presumed to be with prejudice.").

It follows that the type of prior dismissal for failure to state

a claim contemplated by § 1915(g) is one that constituted an

adjudication on the merits and prejudiced the filing of a sub-

sequent complaint with the same allegations. In contrast, a

dismissal without prejudice for failure to state a claim is not

an adjudication on the merits, Mann v. Haigh, 120 F.3d 34,

36 (4th Cir. 1997); Cooter & Gell v. Hartmarx Corp., 496

U.S. 384, 396 (1990), and "permits a plaintiff to refile the

complaint as though it had never been filed," Mendez v. Elliot,

8 MCLEAN v. UNITED STATES

45 F.3d 75, 78 (4th Cir. 1995). Consequently, a dismissal

without prejudice for failure to state a claim does not fall

within the plain and unambiguous meaning of § 1915(g)’s

unqualified phrase "dismissed . . . [for] fail[ure] to state a

claim." As a result, a dismissal without prejudice for failure

to state a claim does not count as a strike.

B.

Although our conclusion as to the unambiguous meaning of

an unqualified dismissal for failure to state a claim in the con-

text of § 1915 is sufficient to end our inquiry, we address the

government’s and the dissent’s assertions that the legislative

purpose of the PLRA supports a contrary interpretation.

The impetus behind the enactment of the PLRA was a con-

cern about the "endless flood of frivolous litigation" brought

by inmates. 141 Cong. Rec. S14,418 (1995) (statement of

Sen. Hatch). The Act’s proponents expressed dismay because

these frivolous suits were "draining precious judicial

resources." 141 Cong. Rec. S7526 (1995) (statement of Sen.

Kyl); see also 141 Cong. Rec. S14,418 (1995) (statement of

Sen. Hatch) ("The crushing burden of these frivolous suits

makes it difficult for courts to consider meritorious claims.").

The purpose of the PLRA was not, however, to impose

indiscriminate restrictions on prisoners’ access to the federal

courts. Senator Kyl emphasized that the Act would "free up

judicial resources for claims with merit by both prisoners and

nonprisoners." 141 Cong. Rec. S7526 (1995) (statement of

Sen. Kyl); see also 141 Cong. Rec. S14,627 (1995) (statement

of Sen. Hatch) ("I do not want to prevent inmates from raising

legitimate claims. This legislation will not prevent those

claims from being raised."). As other courts have concluded,

"[t]here is no doubt that the provisions of the PLRA . . . were

meant to curb the substantively meritless prisoner claims that

have swamped the federal courts." Shane v. Fauver, 213 F.3d

113, 117 (3d Cir. 2000) (emphasis in original).

MCLEAN v. UNITED STATES 9

Because a dismissal without prejudice for failure to state a

claim is not an adjudication on the merits, treating such a dis-

missal as a strike would undermine Congress’s intent. A

potentially meritorious but inartfully pleaded claim by a pris-

oner that is dismissed without prejudice for failure to state a

claim is wholly distinct from a claim that is dismissed as friv-

olous, malicious, or substantively meritless. The former claim

might be revived by competent pleading, but the latter cannot.

As the Second Circuit explained:

Section 1915(g)’s mandate that prisoners may not

qualify for IFP status if their suits have thrice been

dismissed on the ground that they were ‘frivolous,

malicious, or fail[ed] to state a claim’ was intended

to apply to nonmeritorious suits dismissed with prej-

udice, not suits dismissed without prejudice for fail-

ure to comply with a procedural prerequisite.

Snider v. Melindez, 199 F.3d 108, 111 (2d Cir. 1999) (alter-

ation in original). To treat as equivalent nonmeritorious suits

dismissed with prejudice and those dismissed without preju-

dice for failure to state a claim by counting both as strikes

would cut against the clearly expressed goal of Congress.

The dissent nevertheless contends that it is "evident" that

the "legislative purpose underlying § 1915(g)" does not sup-

port our construction of the statute. Post at 28 n.8. The cases

cited by the dissent, however, do not demonstrate that Con-

gress intended § 1915(g)’s strike designation to reach poten-

tially meritorious claims.

The dissent is of course correct in noting that, at the broad-

est level, "the PLRA’s ‘focus is to limit litigation brought by

prisoners,’" post at 19 (quoting Montcalm Pub. Corp. v. Vir-

ginia, 199 F.3d 168, 171 (4th Cir. 1999)). A broadly con-

ceived purpose does not imply, however, that Congress

intended to use a meat-axe approach to achieve the purpose.

The Supreme Court’s opinion in Jones v. Bock, 549 U.S. 199

10 MCLEAN v. UNITED STATES

(2007), cited frequently by the dissent, fully supports our

understanding of the goal of the PLRA. As the dissent itself

explains, using the language of Jones, "[a]lthough our legal

system ‘remains committed to guaranteeing that prisoner

claims . . . are fairly handled according to law,’ the ‘challenge

lies in ensuring that the flood of nonmeritorious claims does

not submerge and effectively preclude consideration of the

allegations with merit.’" Post at 18 (quoting Jones, 549 U.S.

at 203) (emphasis added). A dismissal without prejudice for

failure to state a claim is not an adjudication on the merits of

the claim. Mann v. Haigh, 120 F.3d at 36. Consequently, a

suit dismissed without prejudice for failure to state a claim

cannot properly be characterized as ultimately nonmeritor-

ious; that determination has simply not been made.

C.

The government also cites one circuit court opinion, Day v.

Maynard, 200 F.3d 665 (10th Cir. 1999), which held that a

dismissal without prejudice is a strike under the PLRA. Day

is a Tenth Circuit per curiam opinion that offers no analysis

to support its holding; it only states that "a dismissal without

prejudice counts as a strike, so long as the dismissal is made

because the action is frivolous, malicious, or fails to state a

claim." 200 F.3d at 667. Day relies on opinions from two

other circuits as authority, Rivera v. Allin, 144 F.3d 719 (11th

Cir. 1998); and Patton v. Jefferson Correctional Center, 136

F.3d 458 (5th Cir. 1998). Neither Rivera nor Patton, however,

informs our decision today because neither case involved a

dismissal without prejudice for failure to state a claim. The

dismissals without prejudice analyzed in Rivera and Patton

were dismissals for frivolousness, abuse of the judicial pro-

cess, and failure to exhaust administrative remedies. The

Rivera and Patton courts had no occasion to examine the

implications of their holdings on the type of dismissal at issue

in this case, a dismissal for failure to state a claim.

MCLEAN v. UNITED STATES 11

Finally, the dissent relies on a more recent case from the

Ninth Circuit, O’Neal v. Price, 531 F.3d 1146 (9th Cir. 2008).

There, a divided panel concluded that a denial of an applica-

tion to proceed IFP constituted "bringing" an action for pur-

poses of § 1915(g). The court also held that any § 1915

dismissal, however styled and regardless of whether it was

rendered with leave to refile, counts as a strike. After noting

that § 1915(g) "does not distinguish between dismissals with

and without prejudice," the court said that it "decline[d] to

read into the statute an additional requirement not enacted by

Congress." 531 F.3d at 1154, 1155. Our holding today, how-

ever, does not read an additional requirement into the statute

that was not already implied by Congress’ use of the familiar

phrase "dismissed . . . [for] fail[ure] to state a claim."2 An

unqualified dismissal for failure to state a claim is presumed

to operate with prejudice; the addition of the words "with

prejudice" to modify such a dismissal is simply not necessary.

D.

Our holding that a dismissal without prejudice for failure to

state a claim is not a strike does not, we recognize, resolve

whether a dismissal for frivolousness rendered without preju-

dice would count as a strike. However, nothing in our analysis

of dismissals for failure to state a claim suggests that dismiss-

als for frivolousness should be exempted from § 1915(g)’s

strike designation, even when the dismissal is rendered with-

out prejudice.

Indeed, the Supreme Court’s detailed comparison in

Neitzke v. Williams, 490 U.S. 319 (1989), of dismissals for

failure to state a claim under Rule 12(b)(6) and dismissals for

frivolousness under § 1915 (the IFP statute) makes clear that

meaningful differences exist between these two types of dis-

2

For the same reason, our holding does not, as the dissent suggests, see

post at 27, read any words into the statute that are not already implied by

well-established legal meaning. See part II.A, supra.

12 MCLEAN v. UNITED STATES

missal. In Neitzke the Court considered whether an IFP com-

plaint that fails to state a claim under Rule 12(b)(6) is

automatically frivolous within the meaning of the IFP statute.

Id. at 320. In concluding that the two categories were distinct,

the Court explained that a complaint is frivolous only "where

it lacks an arguable basis either in law or in fact." Id. at 325.

The Court also noted that the IFP statute’s sua sponte dis-

missal provision, now 28 U.S.C. § 1915(e)(2),

is designed largely to discourage the filing of, and

waste of judicial and private resources upon, base-

less lawsuits that paying litigants generally do not

initiate because of the costs of bringing suit and

because of the threat of sanctions for bringing vexa-

tious suits under Federal Rule of Civil Procedure 11.

To this end, the statute accords judges not only the

authority to dismiss a claim based on an indisputably

meritless legal theory, but also the unusual power to

pierce the veil of the complaint’s factual allegations

and dismiss those claims whose factual contentions

are clearly baseless.

Id. at 327. Examples of frivolous claims include those whose

factual allegations are "so nutty," "delusional," or "wholly

fanciful" as to be simply "unbelievable." Gladney v. Pendle-

ton Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002); Denton

v. Hernandez, 504 U.S. 25, 29 (1992).

In contrast, "Rule 12(b)(6) authorizes a court to dismiss a

claim on the basis of a dispositive issue of law." Neitzke, 490

U.S at 326. "This procedure, operating on the assumption that

the factual allegations in the complaint are true, streamlines

litigation by dispensing with needless discovery and factfind-

ing." Id. at 326-27. Although the Supreme Court has subse-

quently made clear that the factual allegations in a complaint

must make entitlement to relief plausible and not merely pos-

sible, see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-

63 (2007), "[w]hat Rule 12(b)(6) does not countenance are

MCLEAN v. UNITED STATES 13

dismissals based on a judge’s disbelief of a complaint’s fac-

tual allegations," Neitzke, 490 U.S. at 327; see also Twombly,

550 U.S. at 556. "District court judges looking to dismiss

claims on such grounds must look elsewhere for legal sup-

port." Neitzke, 490 U.S. at 327. "[A] well-pleaded complaint

may proceed even if it strikes a savvy judge that actual proof

of the facts alleged is improbable and that a recovery is very

remote and unlikely." Twombly, 550 U.S. at 556 (internal

quotations omitted).

Neitzke makes clear that a dismissal for frivolousness is of

a qualitatively different character than a dismissal for failure

to state a claim. As a result, our holding today should not be

read to indicate that a dismissal for frivolousness that is ren-

dered without prejudice should avoid a strike designation.

E.

Our decision today is fully consistent with Congress’ dual

goals of reducing prisoner litigation and, at the same time,

preserving meaningful access to the courts for prisoners with

potentially meritorious claims. In expressing its concerns to

the contrary, the dissent, post at 28-30, posits a situation in

which a district court is confronted with a prisoner’s com-

plaint that "wholly lack[s] merit" and dismisses the complaint

without prejudice for failure to state a claim. The dismissal is

appealed, and this court entertains the appeal pursuant to

Domino Sugar Corp. v. Sugar Workers Local Union 392, 10

F.3d 1064 (4th Cir. 1993), and affirms the dismissal. The dis-

sent contends that failure to count the district court’s dis-

missal as a strike would undermine the goals of the PLRA. To

illustrate its argument the dissent invokes De’lonta v. Ange-

lone, 330 F.3d 630 (4th Cir. 2003).

De’lonta, however, does not substantiate the dissent’s con-

cerns. In De’lonta a prisoner brought a § 1983 claim alleging

denial of adequate medical treatment in violation of the

Eighth Amendment. Although the district court was "unable

14 MCLEAN v. UNITED STATES

to conceive of any set of facts under which the Eighth

Amendment would entitle" the plaintiff to relief, it neverthe-

less dismissed the complaint without prejudice to avoid "com-

plicating any future actions with issues of collateral estoppel

or claim preclusion." 330 F.3d at 633.

De’lonta does not help the dissent for two reasons. First,

upon review, our court actually reversed the district court’s

Rule 12(b)(6) dismissal and remanded the case for further

proceedings. Thus, De’lonta is hardly an illustration of a com-

plaint that "wholly lack[s] merit," the type of complaint that

the PLRA sought to address. Second, because we reversed the

district court’s dismissal, we had no cause to address the

appropriateness of the district court’s decision to dismiss

De’lonta’s suit "without prejudice." To the extent, however,

that a district court is truly unable to conceive of any set of

facts under which a plaintiff would be entitled to relief, the

district court would err in designating this dismissal to be

without prejudice. Courts, including this one, have held that

when a complaint is incurable through amendment, dismissal

is properly rendered with prejudice and without leave to

amend. See Cozzarelli v. Inspire Pharms. Inc., 549 F.3d 618,

630 (4th Cir. 2008) (affirming dismissal with prejudice where

amendment would have been futile); see also, e.g., Gadda v.

State Bar of Cal., 511 F.3d 933, 939 (9th Cir. 2007)

("Because allowing amendment would be futile, we hold that

the district court properly dismissed [plaintiff’s] claims with

prejudice and without leave to amend.").

Rather than compelling an overbroad interpretation of the

term "dismiss" when used in the context of failure to state a

claim under § 1915(g), we suggest De’lonta instead counsels

that courts remain mindful of the distinction between an

unqualified dismissal for failure to state a claim and a dis-

misal without prejudice. While a potentially meritorious

claim, particularly by a pro se litigant, should not be unquali-

fiedly dismissed for failure to state a claim unless its deficien-

cies are truly incurable, see Bolding v. Holshouser, 575 F.2d

MCLEAN v. UNITED STATES 15

461, 464-65 (4th Cir. 1978), such an unqualified dismissal is

entirely proper when the court has reviewed the claim and

found it to be substantively meritless. Once a court has deter-

mined that the complaint is truly unamendable, a dismissal

without prejudice is of little benefit to the litigant, as the claim

cannot be made viable through reformulation. Similarly, dis-

missal of such a complaint without prejudice works to defeat

the PLRA’s goal of reducing substantively meritless prisoner

lawsuits because it allows the prisoner to file the same merit-

less claim again. When a district court is confronted with a

complaint that fails not because of some technical deficiency

but because its claims lack legal merit, this complaint is prop-

erly dismissed for failure to state claim — that is, finally and

prejudicially disposed of. Rather than detracting from Con-

gress’ goal of reducing meritless prisoner litigation, today’s

decision will preserve the ability of district courts to meaning-

fully distinguish between poorly pled but potentially meritori-

ous claims and those that simply lack merit. Any prisoner

whose complaint falls in the latter category will be penalized

with a strike as the PLRA intended.

F.

McLean has had six prior civil actions dismissed. Because

four of those dismissals were without prejudice for failure to

state a claim, he has accrued only two strikes under § 1915(g).

Accordingly, the clerk’s order allowing him to proceed in this

appeal without full prepayment of fees will be allowed to

stand. Because McLean is not a "three striker," it is not neces-

sary for us to consider his claim that he is under imminent

danger of serious physical injury.

III.

We turn at last to the merits of McLean’s appeal. McLean

has sued the United States and the United States Congress

under 42 U.S.C. § 1983, claiming that AEDPA’s statute of

limitations provision, 28 U.S.C. § 2244(d), is a retroactive law

16 MCLEAN v. UNITED STATES

and is thus unconstitutional. As the district court correctly

concluded, the United States and its Congress are immune

from suit in this instance.

As a sovereign the United States "is immune from suit save

as it consents to be sued . . . and the terms of its consent to

be sued in any court define that court’s jurisdiction to enter-

tain the suit." United States v. Testan, 424 U.S. 392, 399

(1976) (internal quotations omitted). The United States has

not waived its sovereign immunity for constitutional tort suits,

such as the one here. Martinez v. Winner, 771 F.2d 424, 442

(10th Cir. 1985). Similarly, this sovereign immunity extends

to the United States Congress when it is sued as a branch of

the government. See Keener v. Congress of U.S., 467 F.2d

952, 953 (5th Cir. 1972). And members of Congress "are

immune from liability for their actions within the ‘legislative

sphere.’" Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491,

510 (1975); see also Art. I, § 6, cl. 1 (Speech and Debate

Clause). As a result, the courts lack jurisdiction to entertain a

suit against the United States and the United States Congress

that challenges the enactment of AEDPA.

IV.

In sum, we hold that the dismissal of a prisoner’s complaint

without prejudice for failure to state a claim does not count

as a strike under 28 U.S.C. § 1915(g). This holding means

that McLean does not have three strikes under § 1915(g) and

that he can proceed in this appeal without the prepayment of

filing fees. In considering the substance of McLean’s claim,

we hold that the courts lack jurisdiction under principles of

sovereign immunity to entertain his suit against the United

States and its Congress. Accordingly, the district court’s order

dismissing his complaint is

AFFIRMED.

MCLEAN v. UNITED STATES 17

SHEDD, Circuit Judge, concurring in part and dissenting in

part:

Quentin McLean, a Virginia inmate and frequent litigant,

filed this civil rights case against the United States of America

and the United States Congress, asserting that a provision of

AEDPA is unconstitutional. The district court dismissed the

complaint under 28 U.S.C. § 1915A for failure to state a claim

upon which relief can be granted. As the majority’s summary

disposition of the merits of McLean’s appeal illustrates, the

district court clearly did not err in dismissing the complaint.

Thus, to the extent that we reach the merits of the appeal, I

agree that the district court’s order should be affirmed. How-

ever, I disagree with the majority’s holding that McLean is

not a "three striker" under 28 U.S.C. § 1915(g). In my view,

this holding, which flows from the majority’s conclusion that

prisoner cases that are dismissed without prejudice for failure

to state a claim do not count as "strikes" under § 1915(g), is

based on an incorrect reading of the statute. Consistent with

the opinions of other circuit courts, I believe the most natural

way to read § 1915(g) is to read it as it is written, and the stat-

ute on its face does not limit its scope only to dismissals with

prejudice.

I

Ordinarily, litigants must pay $350 to file a civil complaint

in a federal district court and $450 to file a notice of appeal

in a federal court of appeals. See 28 U.S.C. §§ 1913 note

("Court of Appeals Miscellaneous Fee Schedule"), 1914(a).

Notwithstanding this fact, "Congress has long regulated the

access of indigent litigants to the federal judicial system,"

Roller v. Gunn, 107 F.3d 227, 230 (4th Cir. 1997), and it has

authorized the district and circuit courts to waive the fees for

most individuals who are unable to afford them by granting

in forma pauperis ("IFP") status. Specifically, Congress

enacted the IFP statute, now codified as 28 U.S.C. § 1915, "to

ensure that indigent litigants have meaningful access to the

18 MCLEAN v. UNITED STATES

federal courts." Neitzke v. Williams, 490 U.S. 319, 324

(1989). However, "there is no absolute ‘right’ to IFP status,"

Altizer v. Deeds, 191 F.3d 540, 545 (4th Cir. 1999), and "Con-

gress is no more compelled to guarantee free access to federal

courts than it is to provide unlimited access to them," Roller,

107 F.3d at 231.

Congress originally believed that the IFP statute would not

lead to a rise in vexatious litigation, but over time "the stat-

ute’s noble purpose has been threatened by a flood of merit-

less lawsuits." Id. at 230. "Unsurprisingly, prisoners proved

responsible for much of this litigation." Id. As the Supreme

Court recently noted:

Prisoner litigation continues to "account for an out-

sized share of filings" in federal district courts. In

2005, nearly 10 percent of all civil cases filed in fed-

eral courts nationwide were prisoner complaints

challenging prison conditions or claiming civil rights

violations. Most of these cases have no merit; many

are frivolous.

Jones v. Bock, 549 U.S. 199, 203 (2007) (quoting Woodford

v. Ngo, 548 U.S. 81, 94 n.4 (2006)). Although our legal sys-

tem "remains committed to guaranteeing that prisoner claims

. . . are fairly handled according to law," the "challenge lies

in ensuring that the flood of nonmeritorious claims does not

submerge and effectively preclude consideration of the allega-

tions with merit," Jones, 549 U.S. at 203.

"Finding that the proliferation of prisoner litigation was due

significantly to the lack of economic disincentives to filing

meritless cases," Roller, 107 F.3d at 230-31, "Congress

addressed that challenge in the PLRA [Prison Litigation

Reform Act]," by enacting "a variety of reforms designed to

filter out the bad claims and facilitate consideration of the

good," Jones, 549 U.S. at 203-04. Simply put, Congress

decided that "[w]hat this country needs . . . is fewer and better

MCLEAN v. UNITED STATES 19

prisoner suits," id. at 203, and the PLRA’s "focus is to limit

litigation brought by prisoners," Montcalm Pub. Corp. v.

Commonwealth of Va., 199 F.3d 168, 171 (4th Cir. 1999), and

"to remove the federal district courts from the business of

supervising the day-to-day operation of state prisons," Cagle

v. Hutto, 177 F.3d 253, 257 (4th Cir. 1999).

To effect its purpose, the PLRA "imposes some rather sub-

stantial limitations on a prisoner’s ability to initiate a civil

action," Green v. Young, 454 F.3d 405, 406 (4th Cir. 2006),

and it "contains provisions that should discourage prisoners

from filing claims that are unlikely to succeed," Crawford-El

v. Britton, 523 U.S. 574, 596 (1998). As we have noted:

"Many sections of the PLRA are simply amendments to the

IFP statute. . . ." Anderson v. XYZ Correctional Health Servs.,

Inc., 407 F.3d 674, 682 n.4 (4th Cir. 2005).

For example, "[p]rior to the enactment of the PLRA, pris-

oners were able to use the in forma pauperis statute to avoid

paying filing fees." Green, 454 F.3d at 407. This practice

"risked encouraging suits that these fees might otherwise have

deterred." Nagy v. FMC Butner, 376 F.3d 252, 255 (4th Cir.

2004). The PLRA amended § 1915 to require prisoners to pay

the full filing fee, and now "IFP status simply allows a pris-

oner to pay the filing fee in installments." Altizer, 191 F.3d at

544 (addressing § 1915(b)).1 Rejecting a constitutional chal-

lenge to this aspect of the PLRA, we commented:

Requiring prisoners to make economic decisions

about filing lawsuits does not deny access to the

courts; it merely places the indigent prisoner in a

position similar to that faced by those whose basic

costs of living are not paid by the state. Those living

1

Even so, § 1915(b)(4) provides that "[i]n no event shall a prisoner be

prohibited from bringing a civil action or appealing a civil or criminal

judgment for the reason that the prisoner has no assets and no means by

which to pay the initial partial filing fee."

20 MCLEAN v. UNITED STATES

outside of prisons cannot file a lawsuit every time

they suffer a real or imagined slight. Instead, they

must weigh the importance of redress before resort-

ing to the legal system. If a prisoner determines that

his funds are better spent on other items rather than

filing a civil rights suit, "he has demonstrated an

implied evaluation of that suit" that the courts should

be entitled to honor.

Roller, 107 F.3d at 233 (quoting Lumbert v. Illinois Dept. of

Corrections, 827 F.2d 257, 260 (7th Cir. 1987)).

The PLRA also created § 1915(g), which is the "three

strikes" provision now at issue. Section 1915(g) provides:

In no event shall a prisoner bring a civil action or

appeal a judgment in a civil action or proceeding

under this section if the prisoner has, on 3 or more

prior occasions, while incarcerated or detained in

any facility, brought an action or appeal in a court of

the United States that was dismissed on the grounds

that it is frivolous, malicious, or fails to state a claim

upon which relief may be granted, unless the pris-

oner is under imminent danger of serious physical

injury.

We have noted that § 1915(g) "does little more than apply the

same rules to prisoners that apply to everyone else who brings

an action or appeal." Altizer, 191 F.3d at 546. In other words:

Although section 1915(g) attaches consequences to

past actions, . . . [it] does not affect a prisoner’s sub-

stantive rights, and it does not block his or her access

to the courts. A prisoner may still pursue any claim

after three qualifying dismissals, but he or she must

do so without the aid of the [IFP] procedures.

MCLEAN v. UNITED STATES 21

Id. at 546 n. 11 (quoting Adepegba v. Hammons, 103 F.3d

383, 386 (5th Cir. 1996)).2

Additionally, the PLRA increases the obligation of federal

courts to dismiss certain prisoner litigation. "Before the

PLRA, the in forma pauperis provision of § 1915 [then codi-

fied at 28 U.S.C. § 1915(d)], applicable to most prisoner liti-

gation, permitted sua sponte dismissal only if an action was

frivolous or malicious." Jones, 549 U.S. at 214.3 However, the

PLRA amended § 1915(d), and recodified it as

§ 1915(e)(2)(B), by adding (among other things) that the

courts should dismiss an IFP action that "fails to state a claim

on which relief may be granted."

Similarly, the PLRA also created two additional provisions

authorizing the summary dismissal of prisoner litigation

regardless of whether the prisoner seeks to proceed IFP. First,

the PLRA created § 1915A, which in pertinent part requires

the district court "before docketing, if feasible or, in any

event, as soon as practicable after docketing" to (1) screen "a

complaint in a civil action in which a prisoner seeks redress

from a governmental entity or officer or employee of a gov-

ernmental entity" and (2) dismiss such a complaint or any

portion thereof that is "frivolous, malicious, or fails to state a

claim upon which relief may be granted." Second, the PLRA

created 42 U.S.C. § 1997e(c)(1),4 which in pertinent part

requires the district court "on its own motion or on the motion

of a party" to dismiss any action brought with respect to

prison conditions under federal law by a prisoner confined in

2

Our court has a similar "three strikes" rule for prisoners seeking writs

of mandamus, prohibition, or other extraordinary relief. See 4th Cir. R.

21(c)(2).

3

The district courts had discretion under § 1915(d) to dismiss a frivo-

lous or malicious action with or without prejudice. See Denton v. Her-

nandez, 504 U.S. 25, 34 (1992).

4

Section 1997e(a) requires prisoners to exhaust administrative remedies

within the prison before filing a civil action.

22 MCLEAN v. UNITED STATES

any jail, prison, or other correctional facility "if the court is

satisfied that the action is frivolous, malicious, [or] fails to

state a claim upon which relief can be granted."

Each of these "separate, but interrelated" PLRA provisions,

O’Neal v. Price, 531 F.3d 1146, 1152 (9th Cir. 2008),

instructs courts to "dismiss" actions on the three grounds that

constitute "strikes" under § 1915(g) (i.e., frivolous, malicious,

fails to state a claim). Because of their obvious similarity,

courts may have the option in a particular case of dismissing

IFP prisoner litigation for failure to state a claim under more

than one of these provisions. See, e.g., Michau v. Charleston

County, S.C., 434 F.3d 725 (4th Cir. 2006) (in holding that the

district court erred in summarily dismissing the plaintiff’s

complaints for failure to state a claim under § 1915A because

the IFP litigant was not a "prisoner," we nonetheless affirmed

the dismissals because the district court had also relied on

§ 1915(e)(2)(B)). Generally speaking, a dismissal under any

of these provisions, as well as under Federal Rule of Civil

Procedure 12(b)(6), would qualify as a "strike" under

§ 1915(g).

As we have noted: "The overriding goal in policing in

forma pauperis complaints is to ensure that the deferred pay-

ment mechanism of § 1915(b) does not subsidize suits that

prepaid administrative costs would otherwise have deterred."

Nagy, 376 F.3d at 257. In amending § 1915(d), and in creat-

ing §§ 1915(g), 1915A(b)(1), and 1997e(c)(1), Congress

clearly viewed dismissal for failure to state a claim as an

important part of its efforts to curb the number of meritless

prisoner lawsuits. Cf. Green, 454 F.3d at 408 ("Before the

PLRA was enacted, no exhaustion requirement applied to

§ 1983 actions. By imposing an exhaustion requirement on

actions by prisoners challenging the conditions of their con-

finement, Congress clearly viewed exhaustion as an important

MCLEAN v. UNITED STATES 23

part of its efforts to curb the number of frivolous lawsuits

brought by prisoners." (citations omitted)).5

II

The specific issue that we have raised in this appeal sua

sponte is whether a dismissal without prejudice for failure to

state a claim counts as a strike under § 1915(g).6 This is a

matter of statutory construction. See Green, 454 F.3d at 408.

Using common sense as a guide, Kofa v. I.N.S., 60 F.3d 1084,

1088 (4th Cir. 1995) (en banc), "[o]ur first step in interpreting

a statute is to determine whether the language at issue has a

plain and unambiguous meaning with regard to the particular

dispute in the case," Robinson v. Shell Oil Co., 519 U.S. 337,

340 (1997). We determine the "plainness or ambiguity of stat-

utory language . . . by reference to the language itself, the spe-

cific context in which that language is used, and the broader

context of the statute as a whole," id. at 341, and "we ordinar-

ily resist reading words . . . into a statute that do not appear

on its face," Dean v. United States, ___ U.S. ___, 2009

Westlaw 1138892, *3 (Apr. 29, 2009) (internal quotation

marks omitted). "Our inquiry must cease if the statutory lan-

guage is unambiguous and the statutory scheme is coherent

and consistent." Robinson, 519 U.S. at 340 (internal quotation

marks omitted).

5

Congress was undoubtedly aware of the Supreme Court’s decision in

Neitzke, in which the Court held that a complaint was not necessarily friv-

olous under § 1915(d) because it failed to state a claim. The Neitzke Court

observed that despite the apparent appeal under § 1915(d) of using failure

to state a claim "as a broadbrush means of pruning meritless complaints

from the federal docket, as a matter of statutory construction it is untena-

ble." 490 U.S. at 326.

6

The operative word in § 1915(g) is "dismissed," Throughout this opin-

ion, I refer to the word "dismissed" in various forms (e.g., "dismiss" and

"dismissal"). Substantively for purposes of this issue, there is no differ-

ence in the form of the word.

24 MCLEAN v. UNITED STATES

A.

We have not previously addressed this issue in a published

opinion, but other circuit courts have held that dismissals

without prejudice count as strikes under § 1915(g). See, e.g.,

O’Neal, 531 F.3d at 1154 ("Because § 1915(g) of the current

PLRA does not distinguish between dismissals with and with-

out prejudice, [prior § 1915(d) precedent] does not detract

from the conclusion that a dismissal without prejudice may

count as a strike."); Day v. Maynard, 200 F.3d 665 (10th Cir.

1999) (stating that "a dismissal without prejudice counts as a

strike, so long as the dismissal is made because the action is

frivolous, malicious, or fails to state a claim."). We have held

similarly, albeit in non-precedential unpublished opinions. See

Vaughan v. Watts, 305 Fed. Appx. 958, 958-59 (4th Cir.

2009) (noting that the district court’s § 1915A dismissal with-

out prejudice for failure to state a claim constituted the prison-

er’s third strike under § 1915(g)); Ballenger v. Norton, 238

Fed. Appx. 974, 975 (4th Cir. 2007), cert. denied, 128 S. Ct.

1476 (2008) (affirming the district court’s § 1915A order that

both dismissed without prejudice the complaint for failure to

state a claim and deemed the case a strike under § 1915(g)).

In Green, we did consider and address the issue of whether

a "routine dismissal" under § 1997e(a) for failure to exhaust

administrative remedies constitutes a strike for purposes of

§ 1915(g). We held that such a dismissal does not constitute

a strike, reasoning that "[b]ecause a dismissal for failure to

exhaust is not listed in § 1915(g), it would be improper for us

to read it into the statute." 454 F.3d at 409.

In Nagy, although we did not consider what constitutes a

strike under § 1915(g), we did address the meaning of the

unqualified word "dismiss" as it is used in § 1915(e)(2)(B)(i),

pursuant to which the district court had dismissed a prisoner’s

IFP complaint as frivolous. On appeal, the prisoner argued

that the district court erred by considering the amount sought

by the prisoner in determining whether the claim was frivo-

MCLEAN v. UNITED STATES 25

lous. We rejected the prisoner’s argument and affirmed the

dismissal. Notably, we stated that we did not think "that Con-

gress intended a dismissal under § 1915(e)(2)(B)(i) of the in

forma pauperis statute to operate as a dismissal with preju-

dice." 376 F.3d at 258. Therefore, we held that the prisoner

"remain[ed] free to file a paid complaint with these same alle-

gations." Id. (emphasis added).

B.

Section 1915(g) plainly does not distinguish between dis-

missals with and without prejudice. Rather, it mandates that

absent imminent danger, a prisoner may not file, or appeal a

judgment in, a civil action under the IFP statute "if the pris-

oner 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. . . ." Notwithstanding § 1915(g)’s

silence regarding "prejudice," the majority reads it as unam-

biguously limiting the unqualified word "dismissed" when

coupled with the phrase "fails to state claim upon which relief

may be granted" to mean "dismissed with prejudice."7

The majority grounds this reading on its view that "the

complete phrase has a well-established legal meaning" that

Congress presumably incorporated into § 1915(g). Majority

Op., at 7. For support, the majority notes that the "failure to

state a claim" ground in § 1915(g) is patterned after Federal

Rule of Civil Procedure 12(b)(6) and unless otherwise speci-

7

In analyzing this issue, the majority has limited its interpretation of the

word "dismissed" to address only a dismissal for failure to state a claim

for relief. For purposes of my opinion, I will utilize the majority’s analyti-

cal framework. Accordingly, it is not necessary to attempt to reconcile our

holding in Nagy that a dismissal for frivolousness under § 1915(e)(2)(B)(i)

must be without prejudice. However, even if the analysis would require

reading the word "dismissed" in a broader context, Nagy does not preclude

my analysis.

26 MCLEAN v. UNITED STATES

fied, courts presume that a Rule 12(b)(6) dismissal for failure

to state a claim is "both a judgment on the merits and . . . ren-

dered with prejudice." Majority Op., at 7. From this, the

majority observes that "[i]t follows that the type of prior dis-

missal for failure to state a claim contemplated by § 1915(g)

is one that constituted an adjudication on the merits and preju-

diced the filing of a subsequent complaint with the same alle-

gations." Majority Op., at 7. Because a Rule 12(b)(6)

dismissal without prejudice is not an adjudication on the mer-

its, the majority concludes that it does not fall within

§ 1915(g) and, consequently, does not count as a strike.

In general usage, there is unquestionably a distinction

between dismissals with and without prejudice, but the issue

before us is whether the plain language of § 1915(g) makes

the distinction relevant. A dismissal with prejudice "is a com-

plete adjudication of the issues presented by the pleadings and

is a bar to a further action between the parties." Harrison v.

Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir.

1991) (citation and punctuation omitted). Conversely, a dis-

missal without prejudice "operates to leave the parties as if no

action had been brought at all." Dove v. CODESCO, 569 F.2d

807, 809 n.3 (4th Cir. 1978). Despite this distinction, which

really pertains only to "claim preclusion and issue preclusion,

. . . collectively referred to as ‘res judicata,’" Taylor v. Stur-

gell, 128 S. Ct. 2161, 2171 (2008), both types of dismissal

share one important characteristic: the termination of the spe-

cific action (or claim), see, e.g., United States v. California,

507 U.S. 746, 756 (1993) ("A dismissal without prejudice ter-

minates the action and concludes the rights of the parties in

that particular action.") (citation and punctuation omitted).

Moreover, a district court ordinarily has discretion to decide

whether to dismiss an action, including for failure to state a

claim, with or without prejudice. Carter v. Norfolk Comm.

Hosp. Ass’n, 761 F.2d 970, 974 (4th Cir. 1985); see also

Payne v. Brake, 439 F.3d 198, 204 (4th Cir. 2006).

Thus, dismissals with and without prejudice for failure to

state a claim for relief are two distinct types of "dismissals,"

MCLEAN v. UNITED STATES 27

but they operate to achieve the same result for purposes of a

specific civil case. Congress undoubtedly was aware of this

fact when it used the unqualified word "dismissed" in

§ 1915(g). See Keene Corp. v. United States, 508 U.S. 200,

212 (1993) (noting that "we apply the presumption that Con-

gress was aware of these earlier judicial interpretations and,

in effect, adopted them"). Based on the plain language of

§ 1915(g), which draws no distinction between the two well-

established types of dismissals for failure to state a claim for

relief, the most natural way to read the unqualified word "dis-

missed" is that it encompasses both types. Although the

majority reads the word "dismissed" as actually stating "dis-

missed with prejudice," we simply are not at liberty to add

those limiting words to the statute. See, e.g., 62 Cases, More

or Less, Each Containing Six Jars of Jam v. United States,

340 U.S. 593, 596 (1951) ("[O]ur problem is to construe what

Congress has written. After all, Congress expresses its pur-

pose by words. It is for us to ascertain — neither to add nor

to subtract, neither to delete nor to distort."); United States v.

Coombs, 37 U.S. 72, 80 (1838) (noting that "upon general

principles of interpretation, where the words are general, the

Court [is] not at liberty to insert limitations not called for by

the sense, or the objects, or the mischiefs of the enactment").

As the Ninth Circuit stated in O’Neal: "If Congress had

intended to limit strikes to dismissals with prejudice, it could

have said so." 531 F.3d at 1154 n.9; see also Jama v. Immi-

gration and Customs Enforc., 543 U.S. 335, 341 (2005) ("We

do not lightly assume that Congress has omitted from its

adopted text requirements that it nonetheless intends to

apply.").

The majority is correct that courts ordinarily construe

unqualified orders of dismissal for failure to state a claim for

relief as being with prejudice. Federal Rule of Civil Procedure

41(b), which "sets forth . . . a default rule for determining the

import of [an involuntary] dismissal," Semtek Int’l. Inc. v.

Lockheed Martin Corp., 531 U.S. 497, 503 (2001), mandates

such a construction. However, there is no indication that Con-

28 MCLEAN v. UNITED STATES

gress intended that principle of construction to apply beyond

the specific context of the rule itself, and certainly not to

§ 1915(g). Indeed, it is notable that although Rule 12 (upon

which the majority relies) is actually silent on the question of

prejudice, Rule 41 expressly differentiates between dismissals

with and without prejudice. Congress does not enact the Fed-

eral Rules of Civil Procedure, but it does participate in the

rulemaking process. Business Guides, Inc. v. Chromatic Com-

munications Enters., Inc., 498 U.S. 533, 552 (1991). To the

extent that Congress was involved in the creation of Rule 41,

it expressly recognized the difference between dismissals with

and without prejudice, and this fact makes clear that when

Congress intends to distinguish between the types of dismiss-

als, it does so expressly. Congress plainly did not do so in

enacting § 1915(g).8

C.

Although the plain language of § 1915(g) resolves this

case, I note as a practical matter that district courts often dis-

miss prisoner cases — including those that wholly lack merit

— for failure to state a claim without prejudice simply to

avoid burdening the prisoner with potential res judicata impli-

cations that a dismissal with prejudice may cause. See, e.g.,

De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003)

(noting that the district court found that it was unable to con-

ceive of any set of facts that would entitle the plaintiff to

relief, but it nonetheless dismissed the complaint without prej-

udice under § 1915(e)(2)(B) to avoid "complicating any

future actions with issues of collateral estoppel or claim pre-

clusion"). Under the majority’s view, those types of cases do

not count as strikes under § 1915(g) for the simple reason that

the district court exercised its discretion in a manner to benefit

8

For the reasons set forth in this opinion, particularly Part I, I believe

it is evident that the legislative purpose underlying § 1915(g) clearly does

not support the majority’s decision.

MCLEAN v. UNITED STATES 29

the prisoner by eliminating a subsequent res judicata chal-

lenge.

This can lead to a particularly curious result given our rules

concerning appellate jurisdiction and dismissals without prej-

udice. Although an order dismissing a complaint without prej-

udice is generally not final and appealable, such an order is

final and appealable if the grounds for dismissal clearly indi-

cate that the plaintiff could not amend the complaint to cure

the defects that warranted the dismissal. Domino Sugar Corp.

v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67

(4th Cir. 1993). We must "examine the appealability of a dis-

missal without prejudice based on the specific facts of the

case in order to guard against piecemeal litigation and repeti-

tive appeals." Chao v. Rivendell Woods, Inc., 415 F.3d 342,

345 (4th Cir. 2005); see also GO Computer, Inc. v. Microsoft

Corp., 508 F.3d 170, 176 (4th Cir. 2007).

In De’Lonta, we applied the Domino Sugar rules to permit

an appeal from an order dismissing a prisoner’s complaint

without prejudice under § 1915(e)(2)(B) for failure to state a

claim upon which relief could be granted. As noted, the dis-

trict court found the prisoner’s complaint to wholly lack

merit, but dismissed the case without prejudice to avoid bur-

dening the prisoner with res judicata implications. Under the

majority’s view, despite the fact that a prisoner in the situa-

tion presented in De’Lonta may unsuccessfully litigate an

appeal of a patently baseless lawsuit all the way to the

Supreme Court, that dismissal would not count as a strike

based on the mere fortuity that the district court labeled the

dismissal "without prejudice." The fact that this scenario did

not occur in De’Lonta (because we reversed the dismissal) is

of no moment. The majority’s categorical exclusion of dis-

missals without prejudice for failure to state a claim compels

the result that a dismissal in the scenario I have described can-

not count as a strike if the dismissal is ultimately affirmed.

Although I disagree with the majority on this matter, I do

not forecast that its decision will necessarily cause a prolifera-

30 MCLEAN v. UNITED STATES

tion of meritless prisoner litigation. As I have noted, our judi-

cial system already faces that problem. I do believe that the

majority’s decision will not advance Congress’ clear goal to

reduce prisoner litigation, at least so long as district courts

continue to err on the side of caution and dismiss meritless

complaints without prejudice. However, the majority’s opin-

ion may well prompt district judges who want to curb exces-

sive (and often meaningless and time-consuming) prisoner

litigation to discontinue that practice and, instead, start dis-

missing those complaints with prejudice.

III

The majority states that counting dismissals without preju-

dice for failure to state a claim as strikes would "impose indis-

criminate restrictions" on prisoners’ access to the federal

courts, Majority Op., at 8, but there is nothing at all indiscrim-

inate in this regard. First, by enacting § 1915(g), Congress has

restricted a prisoner’s access to the federal court system only

if the prisoner seeks IFP status, and only if federal courts have

previously dismissed three or more prior actions for the bases

specified in that section, and only if the prisoner is not under

imminent danger of serious physical injury. Even with this

restriction, a prisoner is not barred from federal courts;

instead, he simply must bear the ordinary costs of litigation

like all other non-IFP litigants. Second, although the majority

concludes that Congress did not intend for dismissals for fail-

ure to state a claim to count as strikes under § 1915(g), no one

would realistically contend that Congress lacks the power to

count those dismissals as strikes.

Although McLean appears to have had six actions dis-

missed for failure to state a claim while he has been incarcer-

ated in Virginia, that description of his litigation history does

not present the entire story. As with any prolific litigant,

attempting to catalog McLean’s litigation history from court

records is not a simple task, but a quick review of the avail-

able records shows that he is the type of prisoner-litigant that

MCLEAN v. UNITED STATES 31

Congress had in mind when it enacted the PLRA.9 For exam-

ple, this case arises from the Eastern District of Virginia,

where McLean has unsuccessfully pursued several actions.

However, McLean has actually been much more litigious in

the Western District of Virginia, which has designated him as

a "three striker" under § 1915(g).10 In addition to McLean’s

dismissals for failure to state a claim noted by the majority,

most if not all of which probably could have been designated

"with prejudice," his designation as a three-striker appears to

have led to the summary dismissal without prejudice of

numerous other cases in the Western District. McLean has

also had cases dismissed without prejudice in the Western

District under § 1997e for failure to exhaust administrative

remedies, and he has unsuccessfully pursued multiple appeals

in this Court and in the Supreme Court.

The majority and I agree that the district court’s dismissal

order for failure to state a claim in the appeal now before us

should be affirmed. That order does not specify that it is with-

out prejudice; thus, it will count as a strike even under the

majority’s view. Given that the majority agrees that McLean

has at least two previous strikes, McLean should hereafter be

deemed a three-striker regardless of whether the majority’s

holding regarding § 1915(g) is correct or not.

IV

Based on the foregoing, I concur in Part III of the majority

opinion, and I dissent from the remainder.

9

McLean appears to have litigated in Virginia under the name "Quentin

McLean" and "Quentin McLean-El." Additionally, a Westlaw search indi-

cates that a "Quentin McLean" and a "Quentin McLean-El" also litigated

unsuccessfully in the District of Columbia federal courts in the 1990s.

10

McLean has appealed one order designating him as a three-striker, and

we have placed that appeal in abeyance pending this appeal. See McLean

v. Dr. Smith, C.A. No. 7:07cv584 (W.D.Va. Dec. 17, 2007) (No. 08-6180

4th Cir.).