William A. White v. Dennis Lemma

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-13650

Non-Argument Calendar

________________________

D.C. Docket No. 6:19-cv-01486-PGB-GJK

WILLIAM A. WHITE,

Plaintiff-Appellant,

versus

DENNIS LEMMA,

in his official capacity as Sheriff of Seminole

County, Florida,

JEFFREY K. GRANT,

DEBEVOISE & POULTON, PA,

UNITED STATES TREASURY,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(January 27, 2020)

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Before WILSON, HULL, and MARCUS, Circuit Judges.

WILSON, Circuit Judge:

The appellant William White is no stranger to the courts. A federal prisoner,

White has long peppered federal and state officials with prison-related lawsuits. In

fact, this lawsuit stems from one of those prior lawsuits. White alleges here that he

once served time in state custody under an agreement between the Sheriff of

Seminole County and the federal government. He later sued the Sheriff for various

civil-rights claims arising out of his time in the Sheriff’s custody (the prior suit).

The Sheriff counterclaimed in the prior suit for the costs of White’s imprisonment,

and White responded with this action against the Sheriff, his counsel, and the

United States Department of the Treasury (the current suit).

White’s latest action alleges that the Sheriff and his counsel, through their

counterclaim, unlawfully double billed the government for White’s prison costs,

that their counterclaim arose to actionable abuse of process, and that the United

States Department of the Treasury must defend and indemnify him against the

counterclaim under 18 U.S.C. § 4007. Yet, despite his litigation experience, he

failed to pay the court filing fee for this lawsuit and did not move for leave to

proceed in forma pauperis (IFP). 1

1

A grant of IFP status to a prisoner means that the prisoner need not pay the typical court filing

fee at the start of the case. See 28 U.S.C. § 1915(a)(1).

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The district court, on its own motion, dismissed White’s complaint for two

reasons. First, the court determined, after screening the complaint under 28 U.S.C.

§ 1915A, that White’s claims were frivolous, and that White failed to state a claim.

This dismissal was on the merits and with prejudice. See NAACP v. Hunt, 891

F.2d 1555, 1560 (11th Cir. 1990) (holding that a dismissal for failure to state a

claim is an adjudication on the merits with prejudice).

Second, the court noted that White had previously filed three

prisoners’-rights cases that were dismissed as frivolous, malicious, or for failure to

state a claim, and that he had failed to allege that he was under imminent danger of

serious injury. As a result, the district court held that White could not proceed IFP

under 28 U.S.C. § 1915(g) (the three-strikes provision), and that his claims, under

our precedent, must be dismissed. See Dupree v. Palmer, 284 F.3d 1234, 1236

(11th Cir. 2002). This dismissal, however, was without prejudice. See id.

The question for us is whether the district court was right to dismiss White’s

case on the merits even though it determined that White had struck out under the

three-strikes provision and had not paid the filing fee. Because we conclude that

the three-strikes provision is non-jurisdictional, and because White failed to state a

claim, we hold that the court properly dismissed the case on its merits, and thus

affirm.

I.

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Congress enacted the Prison Litigation Reform Act (PLRA) to “curtail

abusive prisoner litigation.” Id. To that end, the PLRA contains procedural

safeguards that prevent prisoners from misusing the legal system.

One of these safeguards is the early screening provision. See 28 U.S.C. §

1915A. This provision states that “[t]he court shall review, before docketing, if

feasible or, in any event, as soon as practicable after docketing, a complaint in a

civil action in which a prisoner seeks redress from a governmental entity or officer

or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Upon review, the

court is to identify cognizable claims, or dismiss the complaint or portions that are

frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

monetary relief from a defendant who is immune from that relief. Id. § 1915A(b).

A dismissal for failure to state a claim under the early screening provision is no

different from a dismissal under Federal Rule of Civil Procedure 12(b)(6). Jones v.

Bock, 549 U.S. 199, 215–16 (2007). It is on the merits and with prejudice. See

Hunt, 891 F.2d at 1560.

Another measure is the three-strikes provision. This provision states that in

“no event shall a prisoner bring [an action] under the [IFP] section” if the prisoner

has filed three or more prisoner lawsuits that were dismissed as frivolous,

malicious, or for failure to state a claim, unless the prisoner is “under imminent

danger of serious physical injury.” 28 U.S.C. § 1915(g). We have construed this

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language to mean that a district court must dismiss a prisoner’s claims when the

prisoner has three strikes but failed to pay the filing fee when the suit began. See

Dupree, 284 F.3d at 1236. Unlike a dismissal on the merits, though, this dismissal

is without prejudice. Id.

Now for the question here: What happens when a prisoner strikes out under

the three-strikes provision and fails to pay the filing fee, but also brings frivolous

or unmeritorious claims that a court could dismiss with prejudice under the early

screening provision? Must the court dismiss the case without prejudice out of

hand, or can it opt to dismiss the case on the merits with prejudice instead? In

short, we must decide if our rule requiring dismissal of a prisoner suit under

Section 1915(g) is a jurisdictional rule, or a procedural one that a court can skip to

dismiss on the merits.

We declined to answer this question in Lloyd v. Benton, 686 F.3d 1225, 1228

(11th Cir. 2012). But the plain text of the provision, coupled with our analysis in

Benton and persuasive authority from other courts, convinces us that a court may

dismiss a claim on the merits even when a prisoner has three strikes and fails to

pay the filing fee.

To start, the Supreme Court has “cautioned, in recent decisions, against

profligate use of the term jurisdictional.” Santiago-Lugo v. Warden, 785 F.3d 467,

472 (11th Cir. 2015) (alteration accepted). We thus follow a simple rule in the

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Eleventh Circuit: “[W]here Congress does not say there is a jurisdictional bar,

there is none.” Id. at 473. We do so because, often times, “it is easier to deny (not

grant, of course, but deny)” relief to an abusively litigious prisoner on the merits.

See id. at 475; cf. Granberry v. Greer, 481 U.S. 129, 131 (1987) (“[T]here are

some cases in which it is appropriate for an appellate court to address the merits of

a habeas corpus petition notwithstanding the lack of complete exhaustion.”).

So we start with the text. Section 1915(g) says that “[i]n no event shall a

prisoner bring a civil action . . . under this section” if the prisoner has three or more

strikes. This means that a prisoner with three strikes can’t proceed under Section

1915’s grant of IFP status, but it says nothing of a court’s ability to hear the

prisoner’s case, nor does it bar a prisoner with three strikes from filing suit. See

Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998) (“[S]ection 1915(g) does not

prevent a prisoner with three strikes from filing civil actions; it merely prohibits

him from enjoying IFP status.”).

In other words, a prisoner with three strikes under Section 1915(g) is no

different than any other non-IFP prisoner. A three-strike prisoner thus faces the

fate that any non-IFP prisoner faces when the prisoner fails to pay the filing fee up

front: dismissal without prejudice. See Dupree, 284 F.3d at 1236. But nothing in

the text of Section 1915(g) suggests that a court is without jurisdiction or authority

to dismiss a three-strike prisoner’s case on the merits and must instead dismiss a

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baseless claim without prejudice for failure to pay the filing fee. Because

Congress has not said there is a jurisdictional bar, “there is none.” Santiago–Lugo,

785 F.3d at 473.

In fact, we already decided that this rule is non-jurisdictional in Benton

(though in a different context). 2 There we reversed a district court’s order

remanding a prisoner’s case to state court. The district court held that, since the

prisoner had three strikes and couldn’t cover court costs, the prisoner could not

maintain his case in federal court under Section 1915(g) and thus remand was

appropriate. We reversed, holding that Section 1915(g) did not deprive the federal

court of jurisdiction. We then left it to the district court to decide whether to hear

the case’s merits or dismiss for failure to pay the filing fee. That court, on remand,

dismissed the case not under Section 1915(g), but for abuse of the judicial process.

Lloyd v. Benton, 2014 WL 897045, at *1 (M.D. Fla. Mar. 6, 2014).

Moving outside our circuit, most courts agree that “Section 1915(g) is not a

jurisdictional limitation but merely requires the full prepayment of fees where the

conditions of the statute are met.” Pigg v. F.B.I., 106 F.3d 1497, 1497 (10th Cir.

1997); Isby v. Brown, 856 F.3d 508, 520 (7th Cir. 2017); Lisenby v. Lear, 674 F.3d

2

We’ve also described Section 1915(g) as procedural in a different context. See Rivera, 144

F.3d 725 (“[S]ection 1915(g) is purely procedural, [as] Congress in no way prescribed rules of

decision to the judicial department of the government in cases pending before it.” (alterations

accepted) (internal quotation mark omitted)).

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259, 263 (4th Cir. 2012); see also Jackson v. Stinnett, 102 F.3d 132, 136 (5th Cir.

1996) (holding that the PLRA’s certification requirements are non-jurisdictional).

In fact, the Seventh and Tenth Circuits have answered the question here, holding

that a court can hear a three-strike prisoner’s claim on the merits, even if the

prisoner failed to pay the filing fee. See Smith v. Veterans Admin., 636 F.3d 1306,

1309–10 (10th Cir. 2011) (“[W]e have long recognized that we retain discretion to

ignore the three-strikes rule and reach the merits of an appeal.”); Isby, 856 F.3d at

521. To our knowledge, no circuit has held otherwise in a published opinion.3

Further, although a non-IFP prisoner must pay the filing fee or face

dismissal, see Dupree, 284 F.3d at 1236, our precedent also holds that the “timely

payment of a filing fee” is not a “jurisdictional requisite.” Wrenn v. Am. Cast Iron

Pipe Co., 575 F.2d 544, 547 (5th Cir. 1978)4; see also Rodgers on Behalf of Jones

v. Bowen, 790 F.2d 1550, 1552 (11th Cir. 1986) (noting that we have “expressly

rejected the theory that timely payment of a filing fee is a jurisdictional

3

A Sixth Circuit case could be read to suggest that Section 1915(g) is jurisdictional. See

Shabazz v. Campbell, 12 F. App’x 329, 330 (6th Cir. 2001) (unpublished) (stating that because a

prisoner’s complaint satisfied the provisions of § 1915(g) at the moment of filing, the district

court had no authority to consider the merits of the complaint). But this statement appears to be

dicta, as it was not essential to the court’s affirmance of the district court’s order dismissing the

case under Section 1915(g). In any event, Shabazz did not analyze this issue, is unpublished, and

is uncited by any circuit (including the Sixth Circuit) for that proposition.

4

In Bonner v. City of Prichard, we adopted as binding precedent all decisions of the former Fifth

Circuit handed down before October 1, 1981. 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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requirement”). 5 So though the failure to qualify under the three-strikes provision

and pay the filing fee warrants dismissal, that is a procedural dismissal, not a

jurisdictional one. See Dupree, 284 F.3d at 1236. A court may therefore choose to

dismiss a struck-out prisoner’s case on the merits with prejudice, even if the

prisoner failed to pay the filing fee. See Santiago-Lugo, 785 F.3d at 475; Greer,

481 U.S. at 131. 6

This interpretation tracks the policy driving the PLRA. Again, “[t]he

purpose of the PLRA is to curtail abusive prisoner litigation.” Dupree, 284 F.3d at

1236. Were we to hold that the three-strikes provision is jurisdictional or works as

an absolute procedural bar to our authority to dismiss on the merits, a court would

have to dismiss a case without prejudice whenever a prisoner has more than three

strikes and fails to pay the filing fee, no matter how frivolous the case. That rule

would bog down the courts with repeat litigation—precisely the opposite of the

PLRA’s aim. We thus feel confident that neither Dupree nor the PLRA intended

5

Circuits around the country have agreed with us on this point. See, e.g., Casanova v. Dubois,

304 F.3d 75, 80 (1st Cir. 2002) (“The advance payment of a filing fee is generally not a

jurisdictional prerequisite to a lawsuit.”).

6

We note, however, that this is not a two-way street. Though a court can dismiss a case on the

merits even when the prisoner has three strikes and fails to pay the filing fee, the court cannot let

a case proceed on those facts. See Dupree, 284 F.3d at 1236. As we held in Dupree, the court

must dismiss those cases without prejudice. See id.

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that the three-strikes provision bar a court from dismissing a groundless claim on

the merits. 7

For these reasons, we hold that the PLRA’s three-strike provision is non-

jurisdictional. So though a court must procedurally dismiss without prejudice the

claim of a prisoner who has struck out under the three-strikes provision and failed

to pay the filing fee, the court may also consider the merits to dismiss the case with

prejudice instead.

II.

Having put that issue to bed, we make swift work of the three-strikes

analysis and the merits. We review a district court’s determination of qualifying

strikes under the three-strikes provision de novo. See Rivera, 144 F.3d at 723. We

do the same for a district court’s sua sponte dismissal of a prisoner complaint for

failure to state a claim under 28 U.S.C. § 1915A. Leal v. Georgia Dep’t of Corr.,

254 F.3d 1276, 1279 (11th Cir. 2001). 8

7

Our interpretation also tracks recent Supreme Court precedent holding that similar PLRA

provisions are non-jurisdictional. See Woodford v. Ngo, 548 U.S. 81, 88–89, 101 (2006)

(holding that “the PLRA exhaustion requirement is not jurisdictional,” even though it states that

“[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a

prisoner . . . until such administrative remedies as are available are exhausted” (emphasis

removed)).

8

We also review a district court’s sua sponte dismissal of a complaint as frivolous for abuse of

discretion. Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008). Though the district court

seemed to dismiss White’s claims both as frivolous and for failure to state a claim, we need not

address which standard applies, because White’s claims fail under even the heightened de novo

standard.

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At the gate, the district court was right to hold that White failed to qualify

for IFP status since he has three qualifying prior dismissals and failed to allege that

he was in danger of imminent harm. See 28 U.S.C § 1915(g). One of White’s

prior cases was dismissed for failure to state a claim, another was dismissed as

frivolous, and a third was dismissed for failure to exhaust administrative remedies,

which counts as a strike under our precedent. Rivera, 144 F.3d at 728–31. White

also failed to allege facts showing that he was in any danger of imminent harm. So

he struck out under Section 1915(g), leaving him ineligible for IFP status. And

since White failed to pay the filing fee when he sued, the proper procedure was to

dismiss the suit even if White had alleged meritorious claims. See Dupree, 284

F.3d at 1236.

The court was also right to dismiss the case on its merits after screening.9

“A complaint is subject to dismissal for failure to state a claim if the allegations,

taken as true, show the plaintiff is not entitled to relief.” Jones, 549 U.S. at 215.

To survive a motion to dismiss, the plaintiff’s complaint must contain facts

sufficient to support a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662,

9

The district court seemed to construe some of White’s claims as 18 U.S.C. § 1983 claims. As

the complaint is not a model of clarity, this was a fair construction. But we think it better to

analyze the complaint under the claims as White alleged them, and we exercise our authority to

affirm the district court’s decision on any grounds supported in the record. See Kernel Records

Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012).

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679 (2009). The district court must accept the plaintiff’s allegations as true but

need not accept legal conclusions. Id. at 678.

Starting with the False Claims Act (FCA) claim, the FCA permits private

persons to sue any person who knowingly presents to an officer or employee of the

United States a false claim for payment or approval or knowingly makes a false

record or statement to get a false claim paid or approved by the government.

United States ex rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1307 (11th

Cir. 2002). White did not allege that the defendants presented a false claim to an

officer or employee of the United States; he alleged that they levied a counterclaim

against White, a private citizen. That does not qualify as a false claim under the

FCA. See id.

White’s abuse-of-process claim also fails. To state a claim for abuse of

process under Florida law, a plaintiff must allege three elements: “(1) that the

defendant made an illegal, improper, or perverted use of process; (2) that the

defendant had ulterior motives or purposes in exercising such illegal, improper, or

perverted use of process; and (3) that, as a result of such action on the part of the

defendant, the plaintiff suffered damage.” S & I Invests. v. Payless Flea Market,

Inc., 36 So. 3d 909, 917 (Fla. 4th DCA 2010). The plaintiff must prove that “the

process was used for an immediate purpose other than that for which it was

designed.” Id. When “the process was used to accomplish the result for which it

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was intended, regardless of an incidental or concurrent motive of spite or ulterior

purpose, there is no abuse of process.” Id. (internal quotation marks omitted).

There is no abuse of process here. Florida law allows the Sheriff to sue for

White’s costs of confinement. See Fla. Stat. § 960.297(1). White does not allege

facts sufficient to show that the Sheriff and his counsel were doing anything

besides seeking reimbursement for costs not covered by the United States. Nor

does White allege enough facts to establish damages flowing from the

counterclaim.

Finally, White is not entitled to defense and indemnification under Section

4007. That provision merely states that “expenses attendant upon the confinement

of persons arrested or committed under the laws of the United States . . . shall be

paid out of the Treasury of the United States in the manner provided by law.” 18

U.S.C. § 4007. Nothing in this language provides a prisoner a right of action

against the United States for indemnification and defense. See United States v.

Testan, 424 U.S. 392, 400 (1976) (explaining that a statutory grant of a cause of

action against the United States must be made with specificity).

For these reasons, the district court’s judgment is AFFIRMED.

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