Thompson v. Drug Enforcement Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 19, 2007 Decided June 26, 2007

No. 04-5450

MICHAEL A. THOMPSON,

APPELLANT

v.

DRUG ENFORCEMENT ADMINISTRATION, ET AL.,

APPELLEES

Appeals from the United States District Court

for the District of Columbia

(No. 04cv01118)

No. 05-5082

CHARLES E. THOMPSON,

APPELLANT

v.

GORDON R. ENGLAND, SECRETARY OF THE NAVY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cv00295)

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Amy L. Koch, Student Counsel, argued the cause as amicus

curiae in support of appellant in No. 04-5450. With her on the

briefs were Steven H. Goldblatt, appointed by the court, and

David Arkush, Supervising Attorney.

Emily Hughes, Student Counsel, argued the cause as amicus

curiae in support of appellant in No. 05-5082. With her on the

briefs were Steven H. Goldblatt, appointed by the court, and

David Arkush, Supervising Attorney.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee in Nos. 04-5450 and 05-5082. With him on the brief

were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence

and W. Mark Nebeker, Assistant U.S. Attorneys. Michael J.

Ryan, Assistant U.S. Attorney, entered an appearance.

Before: TATEL, BROWN, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In these two cases, we consider

motions by two prisoners for leave to file appeals in forma

pauperis. The Prison Litigation Reform Act requires that we

deny their motions if on three or more occasions they have

brought an action or appeal in federal court that was “dismissed

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).

Reviewing the litigation histories of the two prisoners, we find

that neither has undertaken three or more such actions or appeals

and therefore grant both leave to proceed in forma pauperis.

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I.

In enacting the Prison Litigation Reform Act (PLRA), Pub.

L. No. 104-134, 110 Stat. 1321 (1996), “Congress’s principal

intent was to reduce frivolous litigation by prisoners challenging

conditions of their confinement.” Blair-Bey v. Quick, 151 F.3d

1036, 1040 (D.C. Cir. 1998). Senator Robert Dole, one of the

PLRA’s principal sponsors, noted that “[p]risoners have filed

lawsuits claiming such grievances as insufficient storage locker

space, being prohibited from attending a wedding anniversary

party, and yes, being served creamy peanut butter instead of the

chunky variety they had ordered.” 141 CONG. REC. 14,570,

14,570 (1995). These types of “frivolous lawsuits,” Senator

Dole explained, “waste valuable judicial and legal resources,

and affect the quality of justice enjoyed by the law-abiding

population.” Id. at 14,571.

To weed out such cases, Congress (1) imposed an

exhaustion requirement for challenges to prison conditions

brought under 42 U.S.C. § 1983, see 42 U.S.C. § 1997e(a); (2)

created a screening procedure, referred to as section 1915A

review, under which courts must dismiss before docketing any

prisoner complaint that is “frivolous, malicious, or fails to state

a claim upon which relief may be granted; or . . . . seeks

monetary relief from a defendant who is immune from such

relief,” 28 U.S.C. § 1915A(b); and (3) restricted federal court

discretion to allow prisoners to file suit without paying filing

fees, that is, to proceed in forma pauperis (IFP). The PLRA

accomplishes this latter restriction in two ways. First, prior to

the PLRA, federal courts could exempt indigent prisoners from

paying filing fees. Ibrahim v. District of Columbia, 208 F.3d

1032, 1033 (D.C. Cir. 2000). Under the PLRA, however,

prisoners whom courts allow to proceed IFP must pay the entire

fee over time, though they need not pre-pay in full for the action

or appeal to commence. 28 U.S.C. § 1915(a), (b).

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Second—and central to the issues before us—the PLRA

limits courts’ discretion to grant IFP status to prisoners with a

track record of frivolous litigation. Known as the “three strikes”

provision, it requires that:

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 prisoner is

under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

Michael Thompson and Charles Thompson, both prisoners

subject to the PLRA, move for leave to appeal IFP. See FED. R.

APP. P. 24(1)(5). Because neither contends that he is “under

imminent danger of serious physical injury,” the sole question

before us is whether either of the two prisoners has accrued

three strikes prior to this appeal.

Michael Thompson has seven actions and appeals that

could qualify as strikes. One is the case he seeks to appeal

here—a suit against the U.S. Drug Enforcement Agency under

the Freedom of Information Act, 5 U.S.C. §§ 552 et seq., and the

Privacy Act, 5 U.S.C. § 552a. The district court dismissed that

complaint in part on res judicata grounds and in part for failure

to exhaust administrative remedies. Michael A. Thompson v.

DEA, No. 04-1118, slip op. at 2–4 (D.D.C. Oct. 28, 2004).

Before the instant action and appeal, Michael Thompson had,

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according to the record before us, filed the following federal

actions and appeals:

• a suit against the St. Louis Police Department

dismissed as frivolous by the Eastern District of

Missouri;

• an appeal of that dismissal to the Eighth Circuit in

which the judgment was affirmed;

• a FOIA suit against the Department of Justice that the

District Court for the District of Columbia dismissed

on grounds unascertainable from the record before us;

• an appeal of that case to this Court in which the

judgment was affirmed;

• a Bivens action dismissed for lack of subject matter

jurisdiction by the District Court for the Eastern

District of Missouri; and

• an appeal of a second FOIA action in which this court

affirmed the district court’s grant of summary

judgment against Michael Thompson (the record

contains no information about the underlying district

court proceedings).

Charles Thompson has four potential strikes. First, in our

district court, he sued the Secretary of the Navy under the

Privacy Act and the Administrative Procedure Act, 5 U.S.C.

§ 706. The district court dismissed the former for lack of

subject matter jurisdiction and granted summary judgment for

the government on the latter. Charles E. Thompson v. Danzig,

No. 03-0295, slip op. at 2 (D.D.C Feb. 9, 2005); Charles E.

Thompson v. Danzig, No. 03-0295, slip op. at 7 (D.D.C Mar. 31,

2004). Prior to the instant action and appeal, the record shows

that Charles Thompson brought three federal actions:

• a suit against DeKalb County, Georgia, dismissed as

frivolous by the Northern District of Georgia;

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• an appeal thereof to the Eleventh Circuit that a single

circuit judge hearing the IFP motion declared to be

frivolous; and

• another suit in the District Court for the Northern

District of Georgia, referred to as the Veterans Service

Board case, in which the court dismissed Thompson’s

complaint in part on statute of limitations grounds and

in part for lack of standing.

Together, these two motions present five unresolved

questions, which we shall consider in turn:

1) Do prisoners moving to proceed IFP bear the burden of

proving their eligibility for IFP status?

2) Do appellate affirmances of cases dismissed as

frivolous count as strikes?

3) Do actions and appeals in which the court lacks

jurisdiction count as strikes?

4) Do actions and appeals defeated by a failure to exhaust

count as strikes?

5) Do actions dismissed pursuant to section 1915A’s

screening procedure automatically count as strikes?

In Butler v. Department of Justice, No. 05-5171, also

decided today, we answer two additional questions: Do

dismissals for failure to prosecute count as strikes? When

should courts exercise their discretion to deny IFP privileges to

prisoners not barred by the PLRA’s three strikes provision?

To help us resolve these issues, we appointed amici for

Michael Thompson, Charles Thompson, and James Butler. The

Court is grateful for their service.

7

II.

Before addressing the contested issues, we note several

areas of agreement. To begin with, both sides appear to agree

that actions containing at least one claim falling within none of

the three strike categories—such as Michael Thompson’s action

currently on appeal—do not count as strikes. We too agree.

Section 1915(g) speaks of the dismissal of “actions and

appeals,” not “claims.” Indeed, it would make no sense to

say—where one claim within an action is dismissed for failing

to state a claim and another succeeds on the merits—that the

“action” had been dismissed for failing to state a claim. Cf. Lira

v. Herrera, 427 F.3d 1164, 1173 (9th Cir. 2005) (“[W]hile

‘action’ in the PLRA refers to the case as a whole, the statute

consistently uses the term in a manner that contemplates

dismissing the entire action only if the entire action fails to meet

statutory standards. When some claims are valid and others are

not, the usual procedural norm—that when a complaint has both

good and bad claims, only the bad claims are

‘dismissed,’—prevails.”) (citation omitted)).

Both sides also agree that the district court dismissals in the

two cases on appeal here could not possibly count as strikes

until the respective appeals are exhausted. Again, we agree.

Although section 1915(g) nowhere expressly states that

dismissals must be final to count as strikes, we think it fairly

implied. A contrary rule would, within those narrow set of cases

in which the third strike is appealed, effectively eliminate our

appellate function. Had Congress intended such an unusual

result, we expect it would have clearly said so. See Jennings v.

Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780

(10th Cir. 1999) (“Congress did not intend to ‘freeze out

meritorious claims or ossify district court errors.’” (quoting

Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996)

(holding same))); see also Campbell v. Davenport Police Dep’t,

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471 F.3d 952, 953 (8th Cir. 2006) (same). But see Robinson v.

Powell, 297 F.3d 540, 541 (7th Cir. 2002) (holding that a

dismissal in the district court may be considered a third strike

before appeal, but only after the appellate court decides whether

“the district court might have erred,” an approach the

government here describes as “creat[ing] more work than is

appropriate for either the courts or the litigants to resolve a

request for IFP privileges,” Appellee’s Br. 24).

Both prisoners also concede—properly in our view—that

they have one strike. In each of those cases, the district court

expressly found the action to be frivolous. Michael A.

Thompson v. St. Louis County Police Dep’t, No. 93-1457 (E.D.

Mo. July 30, 1993); Charles E. Thompson v. DeKalb County,

No. 03-964 (N.D. Ga. July 3, 2003). In a third case, Charles

Thompson brought an appeal in the Eleventh Circuit, where his

IFP motion was assigned to a single appellate judge, who then

denied Thompson’s motion and declared the appeal frivolous.

In support, the judge cited 28 U.S.C. § 1915(e)(2)(B)(i), which

requires federal courts to dismiss actions and appeals brought by

prisoners if at any time they determine the action or appeal to be

frivolous. The judge then gave Charles Thompson thirty-five

days to file a motion for reconsideration, and when that time

passed without a response, the Eleventh Circuit dismissed his

appeal for want of prosecution.

Amicus for Charles Thompson argues that this appeal

should not count as a strike because the Eleventh Circuit

formally dismissed it for failure to prosecute, rather than for

frivolousness. This is hypertechnical. But for the judge

declaring it frivolous, Charles Thompson’s appeal would have

gone forward. We therefore regard this case as Charles

Thompson’s second strike.

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III.

We turn to the five questions presented by these motions.

Burdens of Production and Persuasion

With respect to one of Michael Thompson’s prior cases,

Michael A. Thompson v. Department of Justice, No. 96-1208

(D.D.C. May 31, 1996), the only record evidence about the case

(the PACER docket report) states that the action was dismissed

but provides no information as to the grounds of dismissal,

much less whether the judge regarded the action as frivolous.

Insisting this case should not count as a strike, amicus for

Michael Thompson argues that the defendant—which in this and

most federal court prisoner cases is a government body—bears

the burden of producing evidence capable of convincing the

court that a prior action or appeal was dismissed on one of

section 1915(g)’s enumerated grounds. The government

acknowledges that it bears the initial burden of producing

evidence of three dismissals, but contends that, once it has done

so, the mere fact of dismissal should raise a presumption that the

dismissal was a strike, unless the prisoner produces evidence to

the contrary.

The question whether to count an unexplained dismissal as

a strike may be thought of either in terms of the burden of

production (which party must produce evidence, such as an

order accompanying the judgment, showing the grounds of

dismissal) or in terms of an evidentiary presumption (whether

the mere fact of dismissal suffices to presume the dismissal

rested on section 1915(g) grounds). As a prominent treatise

observes, “‘presumption’ is the slipperiest member of the family

of legal terms, except its first cousin, ‘burden of proof.’”

KENNETH S. BROUN, ET AL., 2 MCCORMICK ON EVIDENCE § 342

at 495 (6th ed. 2006) (hereinafter “MCCORMICK”). Indeed,

10

confusing these two slippery cousins for one another is hardly

surprising given that a presumption is most precisely defined as

“a rule that . . . shifts the burden of producing evidence.” Id. at

496. Because of this functional similarity, the considerations

that justify the creation of a presumption are virtually identical

to those that govern the allocation of the burden of production.

Id. § 343 at 500–01. We thus need not dwell on nomenclature,

so we will analyze this question in terms of the burden of

production.

In allocating the burden of production, we first look to the

statute itself. Where, as here, the statute is silent as to who bears

the burden, we “begin with the ordinary default rule that

plaintiffs bear the risk of failing to prove their claims.” Schaffer

v. Weast, 126 S. Ct. 528, 534 (2005). The default rule is,

however, just that, and we may depart from it when

considerations of fairness, convenience, or probability so

require. Id. (“The ordinary default rule, of course, admits of

exceptions.” (citing MCCORMICK (5th ed.) § 337 at 412–15,

which lists fairness, convenience, and the judicial estimate of the

probabilities as considerations that may justify removing the

burden of proof from the plaintiff)).

The default rule rests on two rationales, neither of which

has any force in the context of an IFP motion. First, as a matter

of formal consistency, the default rule reflects the longstanding

notion that the burden of proof follows the burden of pleading.

Hence, plaintiffs carry the burden on the elements of their cause

of action, and defendants typically, though not always, carry the

burden on affirmative defenses. This rationale does not apply in

the IFP context because in their motions for leave to file IFP

prisoners need not plead compliance with section 1915(g), as the

government has conceded. See Oral Arg. at 36:30. The PLRA

sets forth numerous pleading requirements for prisoners seeking

IFP status—that they provide affidavits attesting to their

11

inability to pay, disclose their assets, and submit certified copies

of their trust fund account statements, 28 USC § 1915(a)(1),

(2)—but nowhere requires that prisoners plead compliance with

section 1915(g). For that reason, we agree with the Ninth

Circuit that had “Congress intended to require prisoners to

affirmatively show that they were not subject to the three strikes

provision, . . . it would have included that requirement in the list

of requirements prisoners must address in order to obtain IFP

status.” Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005).

Cf. Jones v. Bock, 127 S.Ct. 910, 919 (2007) (concluding that,

under the PLRA, prisoners need not plead exhaustion because,

among other reasons, “[t]he PLRA dealt extensively with the

subject of exhaustion, . . . but is silent on the issue whether

exhaustion must be pleaded by the plaintiff or is an affirmative

defense”).

The default rule is also frequently justified on fairness

grounds, i.e., foisting the burden on the defendant would be

unfair given that the defendant is not “asking any favors of the

court.” 21B CHARLES ALAN WRIGHT & KENNETH W. GRAHAM,

JR., FEDERAL PRACTICE AND PROCEDURE § 5122, at 394 (2d ed.

2005); see also MCCORMICK § 337 at 474. This concern over

fairness to the defendant likewise makes little sense in the

context of an IFP motion, which asks the court to exercise its

discretion to forego prepayment of its own filing fee. Unlike

defendants, courts can not be unfairly trapped by a failure of

proof. If the court believes that a prisoner plaintiff is an abusive

filer who has somehow evaded the three strikes provision due to

a failure of proof, it has discretion to deny IFP privileges, thus

preserving its own resources and those of the defendant.

Indeed, considerations of fairness, as well as convenience,

recommend against placing the burden of production on

prisoners seeking IFP status. Unlike government lawyers,

prisoners often lack the ability to gather and store the records

12

necessary to show that past dismissals should not count as

strikes. See, e.g., Andrews, 398 F.3d at 1119–20 & n.9 (“In his

current facility . . . [the prisoner] represents that he is permitted

only six cubic feet of possessions—and that this not enough

space to maintain comprehensive files . . . [The prisoner] also

stated that he does not have access to PACER nor can he visit

clerks’ offices to obtain relevant orders.”). To deny IFP

privileges for potentially meritorious actions simply because the

prisoner is unable to produce records that either the government

defendant or the court itself could easily obtain seems quite

unfair.

Our sense of the relevant probabilities also counsels against

placing the burden of production on the prisoner. Although we

have no doubt that a large percentage of prisoner complaints are

dismissed on grounds of frivolousness, maliciousness, or failure

to state a claim, we also suspect that many prisoner suits are

dismissed for other defects, such as lack of jurisdiction

(including sovereign immunity and standing), qualified

immunity, and failure to exhaust administrative remedies, all of

which (as we shall explain below) typically do not count as

strikes. Further, given that section 1915A requires district

courts to undertake a pre-docketing review of prisoner

complaints and to dismiss any complaint found to be “frivolous,

malicious, or [that] fails to state a claim upon which relief may

be granted,” 28 U.S.C. § 1915A(b), courts would most likely

indicate whether those were the grounds for dismissal, thus

reducing the probability that an unexplained dismissal rests on

section 1915(g) grounds. This conjecture is borne out in the two

dismissals the prisoners concede are strikes and in the Eleventh

Circuit dismissal Charles Thompson claims is not a strike; in all

three cases, the courts’ finding of frivolousness appeared in the

PACER docket report. Given this pattern, we think it

improbable that cases dismissed for unexplained reasons were

in fact dismissed on section 1915(g) grounds.

13

Finally, placing the burden on the party challenging the IFP

motion should reduce the number of unexplained dismissals that

are in fact strikes—thus minimizing for future courts the

problem we face here. Courts and government agencies have

both the incentive and experience to ensure that strikes are

identified as such at the time of dismissal. Counting

unexplained dismissals as non-strikes greatly increases the

chance that courts will, where appropriate, take the relatively

easy step of making clear that dismissals rest on section 1915(g)

grounds, if not to preserve their own resources, then because

government defendants will remind them to do so. By contrast,

prisoner plaintiffs—even were they to bear the burden on this

point in future litigation—are extremely unlikely to insist that

the court make the grounds for dismissal clear in the docket

report.

In sum, weighing considerations of fairness, convenience,

and probability, we hold that prisoners moving for IFP status

need not produce evidence showing the grounds for prior

dismissals. Such evidence must be produced either by the

defendant challenging the prisoner’s IFP status or, when readily

available, by the court itself. That said, we agree with the Ninth

and Seventh Circuits that once such evidence has been

produced, the ultimate burden of persuasion shifts back to the

prisoner to explain why the past dismissals should not count as

strikes. See Andrews, 398 F.3d at 1120; Evans v. Ill. Dep’t of

Corrections, 150 F.3d 810, 811–12 (7th Cir. 1998). Shifting the

burden back to the prisoner will be especially helpful in those

cases where the party challenging the IFP motion produces

evidence of three or more strikes by one or more litigants with

the movant’s name, but where it is unclear whether all the cases

involved the same individual. See, e.g., Butler v. Department of

Justice at *11–12. Presumably, prisoners are in the best position

to resolve that sort of question.

14

How does all of this apply to Michael Thompson v.

Department of Justice? Recall that the only evidence of what

happened in the district court is a single PACER docket report

showing the case was dismissed, without a word on the grounds

for dismissal. Because the government produced no evidence

capable of showing that the district court dismissed the case on

section 1915(g) grounds, it does not count as a strike.

Appellate Affirmances of Strikes

In 1994, the Eastern District of Missouri dismissed Michael

Thompson’s suit against the St. Louis County Police

Department as “legally frivolous.” Michael Thompson then

appealed to the Eighth Circuit, which summarily affirmed

without explanation.

The government urges us to count an appellate affirmance

of a strike as a second strike. Section 1915(g)’s plain text,

however, speaks only of dismissals, not affirmances. The choice

of the word “dismiss” rather than “affirm” in relation to appeals

was unlikely an act of careless draftsmanship. Indeed, we think

it 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) (emphasis added); see also

Jennings, 175 F.3d at 780 (“Under the plain language of the

statute, only a dismissal may count as strike, not the affirmance

of an earlier decision to dismiss.”).

For several reasons, it makes sense for Congress to have

limited the statutory definition of strikes to dismissals rather

than affirmances. To begin with, an affirmance, even a

summary affirmance, does not necessarily imply an independent

judgment by the court of appeals that the appeal itself is

15

frivolous, but only that the district court correctly dismissed the

complaint. Further, section 1915(e)(2) requires appellate courts

to dismiss all frivolous appeals. Thus, given section

1915(e)(2)’s mandatory language, a decision to affirm rather

than to dismiss implies a judgment that the appeal was not

frivolous. 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 the reviewing court

would regard the earlier disposition as a constructive dismissal

under section 1915(e)(2) and, therefore, as a strike. We face no

such situation here. All three appeals lost by Michael

Thompson were affirmances and in not one did the court state

that the appeal was frivolous, malicious, or failed to state a

claim. Thus, these three cases do not count as strikes.

Dismissals for Lack of Jurisdiction

In 1998, the Eastern District of Missouri dismissed Michael

A. Thompson v. Department of Justice, No. 98-0877 (E.D. Mo.

Aug. 3, 1998), for lack of jurisdiction. In its brief, the

government urges us to count this and other dismissals for lack

of jurisdiction as section 1915(g) strikes. Doing so, however,

would conflict with the statute’s text, which counts as a strike

only 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.” 28 U.S.C. § 1915(g). Surely, there is nothing

necessarily frivolous or malicious in bringing an action for

which the court lacks jurisdiction. Equally clearly, a dismissal

for lack of jurisdiction is not the same as a dismissal for failure

to state a claim: in enacting section 1915(g), Congress chose to

mirror the language of Federal Rule of Civil Procedure 12(b)(6),

not 12(b)(1).

16

Although at oral argument, the government wisely

conceded that dismissals for lack of jurisdiction do not count as

strikes within the meaning of section 1915(g), Oral Arg. at

44:24, it nonetheless argued that because courts have discretion

to deny IFP privileges we should use that discretion to create a

per se rule that counts dismissals for lack of jurisdiction as

strikes. The government’s proposal suffers from two serious

flaws. First, because understanding federal court jurisdiction is

no mean feat even for trained lawyers, creating a rule that

mechanically treats dismissals for lack of jurisdiction as strikes

would pose a serious risk of penalizing prisoners proceeding in

good faith and with legitimate claims. Second, although we do

have discretion to deny IFP privileges even when the PLRA

does not so require, see 28 U.S.C. § 1915(a)(1); Ibrahim v.

District of Columbia, 208 F.3d 1032, 1036 (D.C. Cir. 2000), we

have no authority to pretend the PLRA says something it does

not. To follow the government’s suggested approach—using

our discretionary authority to intermingle judge-made

mandatory rules into the scheme created by Congress—would

not only obscure which branch of government made the decision

to deny a given prisoner IFP privileges, but would also leave the

impression that we are attempting to improve on Congress’s

handiwork. As the Supreme Court recently warned: “‘Whatever

temptation the statesmanship of policy-making might wisely

suggest,’ the judge’s job is to construe the statute—not to make

it better.” Jones, 127 S. Ct. at 921 (quoting Felix Frankfurter,

Some Reflections on the Reading of Statutes, 47 COLUM. L. REV.

527, 533 (1947)).

The more transparent approach, we believe, is first to

decide whether the PLRA requires us to deny IFP privileges and

then, if it does not, “to examine the number, content, frequency,

and disposition of [the prisoner’s] previous filings to determine

if there is a pattern of abusing the IFP privilege in his litigation

history.” Butler v. Department of Justice, No. 05-5171, at *10.

17

Failure to Exhaust

In the case Michael Thompson seeks to appeal here, the

district court dismissed part of his complaint on a Rule 12(b)(6)

motion because he failed to allege he had exhausted his

administrative remedies under FOIA. Noting that in this and

other cases courts have sometimes found that a Rule 12(b)(6)

motion represents the appropriate procedural vehicle for

disposing of a case in which the plaintiff fails to exhaust, see,

e.g., Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir. 2003), the

government argues that actions defeated by a failure to exhaust

should generally count as strikes. Conversely, amicus for

Michael Thompson argues that such actions should never count

as strikes unless they are frivolous or malicious, pointing out

that another part of the PLRA draws a sharp distinction between

failure to exhaust and failure to state a claim. See 42 U.S.C.

§ 1997e(c)(2); see also Snider v. Melindez, 199 F.3d 108, 111

(2d Cir. 1999).

We think both sides reach too far. Because there is no

categorical answer to the question whether failure to exhaust

administrative remedies counts as failure to state a claim for

Rule 12(b)(6) purposes, the question likewise has no categorical

answer under section 1915(g), the language of which Congress

clearly modeled on Rule 12(b)(6). Accord Millsap v. Jefferson

County, No. 03-1235, 2003 WL 23021406 (8th Cir. Dec. 23,

2003) (per curiam). As the Supreme Court recently put it:

“Whether a particular ground for opposing a claim may be the

basis for dismissal for failure to state a claim depends on

whether the allegations in the complaint suffice to establish that

ground, not on the nature of the ground in the abstract.” Jones,

127 S. Ct. at 921.

18

Courts frequently treat failure to exhaust as an affirmative

defense, see, e.g., id. at 919 (holding that the PLRA’s exhaustion

requirement for prisoner actions under 42 U.S.C. § 1983 is an

affirmative defense). But if a particular statute requires the

plaintiff to plead exhaustion and the plaintiff fails to do so, the

court may dismiss the complaint on a Rule 12(b)(6) motion.

Further, even when failure to exhaust is treated as an affirmative

defense, it may be invoked in a Rule 12(b)(6) motion if the

complaint somehow reveals the exhaustion defense on its face.

See id. at 921; see also 5B CHARLES ALAN WRIGHT & ARTHUR

R. MILLER, FEDERAL PRACTICE AND PROCEDURE §1357, at

708–30 (3d ed. 2004). When a court dismisses an unexhausted

complaint under Rule 12(b)(6), thus concluding that the

complaint fails to state a claim, section 1915(g)’s plain text

compels us to count that case as a strike. In the majority of

cases, however, in which failure to exhaust is treated as an

affirmative defense and appears nowhere on the face of the

complaint, the defense will not be raised on a Rule 12(b)(6)

motion and the dismissal will not count as a strike. Similarly, if

under the relevant statute (or the judicial interpretation thereof),

an exhaustion requirement is jurisdictional, then the court will

dismiss the unexhausted complaint pursuant to Rule 12(b)(1)

and the dismissal will not count as a strike.

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. With regard to exhaustion, both section

1915(g)’s text and our desire for clarity point toward the same

rule: if the court dismisses an unexhausted complaint on a Rule

12(b)(6) motion or if it dismisses the complaint sua sponte and

expressly declares that the complaint fails to state a claim, the

dismissal counts as a strike. But if the court dismisses the

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complaint on some other procedural mechanism, such as a Rule

12(b)(1) motion or a motion for summary judgment, the

dismissal will not count as a strike. Although we have no

occasion to decide the issue, we expect a similar approach

should apply with respect to other grounds for dismissal (such

as statute of limitations defenses) that different statutes treat

alternately as affirmative defenses, elements of the plaintiff’s

cause of action, or jurisdictional prerequisites. Finally, it bears

repeating that IFP motions present no occasion for relitigating

final judgments. Thus, even though a court may believe that a

previous court erred by dismissing an unexhausted complaint

under Rule 12(b)(6) or by failing to do so, all that matters for the

purpose of counting strikes is what the earlier court actually did,

not what it ought to have done.

Because the district court in this case expressly stated that

Michael Thompson’s failure to plead exhaustion under FOIA

meant that he had failed to state a claim, we would ordinarily

count the dismissal as a strike. In this case, however, we will

not do so because, as noted above, (1) a dismissal does not

become a strike until an appeal thereof has been resolved or

waived, neither of which has yet occurred here, and (2) Michael

Thompson had another claim that the district court disposed of

on a Rule 12(b)(1) motion.

Section 1915A Dismissals

In the Veterans Service Board case, the district court

dismissed Charles Thompson’s complaint pursuant to its

mandatory section 1915A review, which requires courts to

“dismiss the complaint, or any portion of the complaint, if the

complaint . . . is frivolous, malicious, or fails to state a claim

upon which relief may be granted; or . . . seeks monetary relief

from a defendant who is immune from such relief.” 28 U.S.C.

§ 1915A(b). The court, however, never said that it found the

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complaint to be frivolous, malicious, or that it failed to state a

claim. Instead, invoking separate authority to raise such issues

sua sponte, the court determined that one of Charles

Thompson’s two claims was time-barred and the other barred

for lack of standing.

The government urges us to treat all section 1915A

dismissals as presumptive strikes. We decline to create such a

presumption because, for a variety of reasons, a complaint that

is neither frivolous, malicious, nor fails to state a claim could

nonetheless be dismissed pursuant to section 1915A review. To

begin with, section 1915A requires dismissal of complaints that

“seek[] monetary relief from a defendant who is immune from

such relief”—a reason not covered by section 1915(g). Also,

courts may use the occasion of section 1915A review to dismiss

on grounds listed in neither section 1915A nor section

1915(g)—just what happened in the Veterans Service Board

case in which the court dismissed part of the complaint for lack

of jurisdiction. In any event, even were there a presumption that

section 1915A dismissals count as strikes, Charles Thompson

would have overcome that presumption by showing that one of

his claims was dismissed for lack of jurisdiction—a ground not

listed in section 1915(g).

IV.

In sum, we find that Michael Thompson has one strike and

Charles Thompson has two. Thus, section 1915(g) presents no

bar to our granting IFP privileges to either prisoner.

This leaves the question whether we should—as the

government urges—nonetheless exercise our discretion to deny

them IFP privileges. In making this determination, we “examine

the number, content, frequency, and disposition of [the

prisoner’s] previous filings to determine if there is a pattern of

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abusing the IFP privilege in his litigation history.” Butler v.

Department of Justice, No. 05-5171 at *10. As to the number

and frequency of filings, the record shows that prior to the

instant matters Michael Thompson filed six actions and appeals

over the course of roughly nine years and that Charles

Thompson filed three over the course of one year. This pattern

of filing falls substantially short of being abusive. See Butler, at

*11–12 (denying IFP privileges for a prisoner that had filed at

least twenty-five actions and appeals and at least eight over the

course of the previous four years). As to the content and

disposition of those filings, we again see nothing to suggest a

pattern of abuse. Apart from the three cases deemed

frivolous—for which the two prisoners will be held to account

under section 1915(g)—these relatively routine matters were

disposed of on a variety of grounds, none of which suggests

either a lack of good faith or a disregard for judicial resources.

V.

For the reasons stated above, we grant both motions for

leave to proceed IFP. To provide guidance for future cases we

summarize our holdings as follows:

• Section 1915(g) applies to actions and appeals, not

individual claims. If at least one claim within an action

or appeal falls outside section 1915(g), the action or

appeal does not count as a strike.

• Section 1915(g) applies only to final dismissals.

Dismissals do not count as strikes until an appeal has

been either waived or resolved.

• The burden of producing evidence showing the

grounds for past dismissals falls on defendants

challenging IFP status. When such records are readily

available, the court will produce them itself. The

prisoner, however, bears the ultimate burden of

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persuasion.

• Appellate dismissals pursuant to section

1915(e)(2)(B)(i)-(ii) count as strikes. Appellate

affirmances do not count as strikes unless the court

expressly states that the appeal itself was frivolous,

malicious or failed to state a claim.

• Dismissals for lack of jurisdiction do not count as

strikes unless the court expressly states that the action

or appeal was frivolous or malicious.

• Dismissals for failure to exhaust administrative

remedies count as strikes only when they come on a

Rule 12(b)(6) motion or when the court dismisses the

complaint sua sponte and expressly states that it fails

to state a claim upon which relief may be granted.

• Dismissals pursuant to section 1915A screening do not

count as strikes unless based on one of the grounds

enumerated in section 1915(g).

So ordered.