Lomax v. Ortiz-Marquez

(Slip Opinion) OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

LOMAX v. ORTIZ-MARQUEZ ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 18–8369. Argued February 26, 2020—Decided June 8, 2020

The Prison Litigation Reform Act of 1995 (PLRA) established what has

become known as the three-strikes rule, which generally prevents a

prisoner from bringing suit in forma pauperis (IFP) if he has had three

or more prior suits “dismissed on the grounds that [they were] frivo-

lous, malicious, or fail[ed] to state a claim upon which relief may be

granted.” 28 U. S. C. §1915(g).

Petitioner Arthur Lomax, an inmate in a Colorado prison, filed this

suit against respondent prison officials to challenge his expulsion from

the facility’s sex-offender treatment program. He also moved for IFP

status, but he had already brought three unsuccessful legal actions

during his time in prison. If the dispositions of those cases qualify as

strikes under Section 1915(g), Lomax may not now proceed IFP. The

courts below concluded that they did, rejecting Lomax’s argument that

two of the dismissals should not count as strikes because they were

without prejudice.

Held: Section 1915(g)’s three-strikes provision refers to any dismissal for

failure to state a claim, whether with prejudice or without.

This case begins, and pretty much ends, with Section 1915(g)’s text.

The provision’s broad language covers all dismissals for failure to state

a claim, whether issued with or without prejudice to a plaintiff’s ability

to reassert his claim in a later action. A strike-call under Section

1915(g) thus hinges exclusively on the basis for the dismissal, regard-

less of the decision’s prejudicial effect. To reach the opposite result

would require reading the word “dismissed” in Section 1915(g) as “dis-

missed with prejudice.” Doing so would also introduce inconsistencies

into the PLRA, which has three other provisions mentioning “dis-

miss[als]” for “fail[ure] to state a claim.” §§1915(e)(2)(B)(ii), 1915A(b);

42 U. S. C. §1997e(c). As the parties agree, those provisions do not

2 LOMAX v. ORTIZ-MARQUEZ

Syllabus

deprive courts of the ability to dismiss suits without prejudice.

Lomax nonetheless maintains that Section 1915(g)’s phrase “dis-

missed [for] fail[ure] to state a claim” is a “legal term of art” referring

only to dismissals with prejudice. To support this view, he points to

Federal Rule of Civil Procedure 41(b), which tells courts to treat a dis-

missal “as an adjudication on the merits”—meaning a dismissal with

prejudice—where the dismissal order does not specify. But Rule 41(b)

is necessary precisely because “dismissed for failure to state a claim”

refers to dismissals both with and without prejudice. The existence of

the rule thus undercuts Lomax’s position.

Lomax also argues that the Court should interpret the phrase “fail-

ure to state a claim” based on the other two grounds for dismissal listed

in Section 1915(g). But contra Lomax’s view, courts can and some-

times do dismiss at least frivolous actions without prejudice. Still

more fundamentally, interpreting the phrase “failure to state a claim”

based on the pre-existing terms “frivolous” and “malicious” would de-

feat the PLRA’s expansion of the statute beyond what was already

there. Pp. 3–7.

754 Fed. Appx. 756, affirmed.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and GINSBURG, BREYER, ALITO, SOTOMAYOR, GORSUCH, and KAVANAUGH,

JJ., joined, and in which THOMAS, J., joined as to all but footnote 4.

Cite as: 590 U. S. ____ (2020) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–8369

_________________

ARTHUR J. LOMAX, PETITIONER v. CHRISTINA

ORTIZ-MARQUEZ, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 8, 2020]

JUSTICE KAGAN delivered the opinion of the Court.*

To help staunch a “flood of nonmeritorious” prisoner liti-

gation, the Prison Litigation Reform Act of 1995 (PLRA) es-

tablished what has become known as the three-strikes rule.

Jones v. Bock, 549 U. S. 199, 203 (2007). That rule gener-

ally prevents a prisoner from bringing suit in forma pau-

peris (IFP)—that is, without first paying the filing fee—if

he has had three or more prior suits “dismissed on the

grounds that [they were] frivolous, malicious, or fail[ed] to

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

§1915(g). Today we address whether a suit dismissed for

failure to state a claim counts as a strike when the dismis-

sal was without prejudice. We conclude that it does: The

text of Section 1915(g)’s three-strikes provision refers to

any dismissal for failure to state a claim, whether with prej-

udice or without.

I

Petitioner Arthur Lomax is an inmate in a Colorado

prison. He filed this suit against respondent prison officials

——————

* JUSTICE THOMAS joins all but footnote 4 of this opinion.

2 LOMAX v. ORTIZ-MARQUEZ

Opinion of the Court

to challenge his expulsion from the facility’s sex-offender

treatment program. As is common in prison litigation, he

also moved for IFP status to allow his suit to go forward

before he pays the $400 filing fee. For that motion to suc-

ceed, Lomax must avoid Section 1915(g). That provision

bars further IFP litigation once a prisoner has had at least

three prior suits dismissed on specified grounds.1 And Lo-

max is no rookie litigant. During his time in prison, he has

already brought three unsuccessful legal actions (against

various corrections officers, prosecutors, and judges). If the

dispositions of those cases qualify as strikes under Section

1915(g), Lomax may not now proceed IFP.

The courts below ruled that Lomax had struck out. The

District Court denied his motion for IFP status, finding that

all three of his prior suits had been dismissed for failure to

state a claim—one of the grounds specified in Section

1915(g). See App. 65–66.2 On appeal, Lomax argued that

two of those dismissals should not count as strikes because

they were without prejudice, thus allowing him to file a

later suit on the same claim. The Court of Appeals for the

Tenth Circuit rejected that argument. Relying on Circuit

——————

1 The full text of the three-strikes provision reads:

“In no event shall a prisoner bring a civil action or appeal a judgment

in a civil action or proceeding [in forma pauperis] 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 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 danger of serious physical injury.” 28 U. S. C. §1915(g).

2 Two of the cases were dismissed under Heck v. Humphrey, 512 U. S.

477 (1994), which holds that a claim challenging the validity of a convic-

tion or sentence under 42 U. S. C. §1983 “does not accrue until the con-

viction or sentence has been invalidated.” 512 U. S., at 490. In conclud-

ing that those two Heck dismissals were for failure to state a claim, the

District Court followed Circuit precedent. See Smith v. Veterans Admin.,

636 F. 3d 1306, 1312 (CA10 2011). Not all Courts of Appeals accept that

view. See, e.g., Mejia v. Harrington, 541 Fed. Appx. 709, 710 (CA7 2013).

But Lomax did not raise that issue, and we therefore do not address it.

Cite as: 590 U. S. ____ (2020) 3

Opinion of the Court

precedent, the Court held it “immaterial to the strikes anal-

ysis” whether a dismissal was with or without prejudice.

754 Fed. Appx. 756, 759 (2018) (quoting Childs v. Miller,

713 F. 3d 1262, 1266 (CA10 2013)).

The Courts of Appeals have long divided over whether a

dismissal without prejudice for failure to state a claim qual-

ifies as a strike under Section 1915(g).3 In line with our

duty to call balls and strikes, we granted certiorari to re-

solve the split, 589 U. S. ___ (2019), and we now affirm.

II

This case begins, and pretty much ends, with the text of

Section 1915(g). Under that provision, a prisoner accrues a

strike for any action “dismissed on the ground[ ] that it . . .

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

That broad language covers all such dismissals: It applies

to those issued both with and without prejudice to a plain-

tiff ’s ability to reassert his claim in a later action.4 A strike-

call under Section 1915(g) thus hinges exclusively on the

basis for the dismissal, regardless of the decision’s prejudi-

——————

3 Four Circuits treat dismissals without prejudice for failure to state a

claim as strikes. See Orr v. Clements, 688 F. 3d 463, 465 (CA8 2012);

Paul v. Marberry, 658 F. 3d 702, 704 (CA7 2011); O’Neal v. Price, 531

F. 3d 1146, 1154 (CA9 2008); Day v. Maynard, 200 F. 3d 665, 667 (CA10

1999) (per curiam). Two Circuits do the opposite. See Millhouse v.

Heath, 866 F. 3d 152, 162–163 (CA3 2017); McLean v. United States, 566

F. 3d 391, 396–397 (CA4 2009).

4 Note, however, that the provision does not apply when a court gives

a plaintiff leave to amend his complaint. Courts often take that path if

there is a chance that amendment can cure a deficient complaint. See

Fed. Rule Civ. Proc. 15(a) (discussing amendments to pleadings). In that

event, because the suit continues, the court’s action falls outside of Sec-

tion 1915(g) and no strike accrues. See Brief for Respondents 31–35 (not-

ing that flexible amendment practices “ensure that potentially meritori-

ous prisoner suits are not hastily dismissed with a strike”); Brief for

United States as Amicus Curiae 27–28 (similar); Tr. of Oral Arg. 32–34,

44 (similar).

4 LOMAX v. ORTIZ-MARQUEZ

Opinion of the Court

cial effect. To reach the opposite result—counting prejudi-

cial orders alone as strikes—we would have to read the sim-

ple word “dismissed” in Section 1915(g) as “dismissed with

prejudice.” But this Court may not narrow a provision’s

reach by inserting words Congress chose to omit. See, e.g.,

Virginia Uranium, Inc. v. Warren, 587 U. S. ___, ___ (2019)

(lead opinion of GORSUCH, J.) (slip op., at 1).

Indeed, to do so would violate yet another rule of statu-

tory construction: “In all but the most unusual situations, a

single use of a statutory phrase must have a fixed meaning”

across a statute. Cochise Consultancy, Inc. v. United States

ex rel. Hunt, 587 U. S. ___, ___ (2019) (slip op., at 5). The

PLRA includes three other provisions mentioning “dis-

miss[als]” for “fail[ure] to state a claim”—each enabling

courts to dismiss sua sponte certain prisoner suits on that

ground. §§1915(e)(2)(B)(ii), 1915A(b); 42 U. S. C. §1997e(c).

No one here thinks those provisions deprive courts of the

ability to dismiss those suits without prejudice. See Reply

Brief 15; Brief for Respondents 21–24; Brief for United

States as Amicus Curiae 21–22. Nor would that be a plau-

sible position. The broad statutory language—on its face

covering dismissals both with and without prejudice—

tracks courts’ ordinary authority to decide whether a dis-

missal for failure to state a claim should have preclusive

effect. So reading the PLRA’s three-strikes rule to apply

only to dismissals with prejudice would introduce inconsist-

encies into the statute. The identical phrase would then

bear different meanings in provisions almost next-door to

each other.

Still, Lomax maintains that the phrase “dismissed [for]

fail[ure] to state a claim” in Section 1915(g) is a “legal term

of art” referring only to dismissals with prejudice. Reply

Brief 4. To support that view, he relies on a procedural rule

used to answer a different question. When a court dis-

misses a case for failure to state a claim, but neglects to

specify whether the order is with or without prejudice, how

Cite as: 590 U. S. ____ (2020) 5

Opinion of the Court

should a later court determine its preclusive effect? Federal

Rule of Civil Procedure 41(b), codifying an old equitable

principle, supplies the answer: It tells courts to treat the

dismissal “as an adjudication on the merits”—meaning a

dismissal with prejudice. See Durant v. Essex Co., 7 Wall.

107, 109 (1869). According to Lomax, “Section 1915(g)

should be interpreted in light of this legal backdrop.” Brief

for Petitioner 17. He reasons: Because Rule 41(b) presumes

that an order stating only “dismissed for failure to state a

claim” is with prejudice, the same language when used in

Section 1915(g) should bear that same meaning. And if so,

the provision would assign a strike to only with-prejudice

dismissals for failure to state a claim.

But that argument gets things backwards. The Rule

41(b) presumption (like its older equitable counterpart)

does not convert the phrase “dismissed for failure to state a

claim” into a legal term of art meaning “dismissed with

prejudice” on that ground. To the contrary, Rule 41(b) is

necessary because that phrase means only what it says:

“dismissed for failure to state a claim”—whether or not with

prejudice. In other words, the phrase’s indifference to prej-

udicial effect is what creates the need for a default rule to

determine the import of a dismissal when a court fails to

make that clear. Rule 41(b), then, actually undercuts Lo-

max’s position: Its very existence is a form of proof that the

language used in Section 1915(g) covers dismissals both

with and without prejudice. And here too, confirmation of

the point comes from the PLRA’s other provisions referring

to “dismiss[als]” for “fail[ure] to state a claim.” See supra,

at 4. If that phrase had really become a legal term of art

implying “with prejudice,” then those provisions would pre-

vent courts from dismissing prisoner suits without preju-

dice for failure to state a claim. But Lomax himself does

not accept that improbable reading. See ibid. His supposed

“term of art” is strangely free-floating, transforming ordi-

6 LOMAX v. ORTIZ-MARQUEZ

Opinion of the Court

nary meaning in one place while leaving it alone in all oth-

ers.

Lomax also makes an argument based on the two other

grounds for dismissal listed in Section 1915(g). Recall that

the provision counts as strikes dismissals of actions that are

“frivolous” or “malicious,” along with those that fail to state

a claim. See supra, at 1, 2, n. 1. In Lomax’s view, the first

two kinds of dismissals “reflect a judicial determination

that a claim is irremediably defective”—that it “cannot suc-

ceed and should not return to court.” Brief for Petitioner

11, 22 (internal quotation marks omitted). To “harmonize

[all] three grounds for strikes,” he continues, the same must

be true of dismissals for failure to state a claim. Id., at 23;

see id., at 21 (invoking the “interpretive canon noscitur a

sociis, a word is known by the company it keeps” (internal

quotation marks omitted)). So Section 1915(g), Lomax con-

cludes, must capture only the subset of those dismissals

that are issued with prejudice—the ones disposing of “irre-

deemable” suits. Id., at 21.

As an initial matter, the very premise of that argument

is mistaken. Contra Lomax’s view, courts can and some-

times do conclude that frivolous actions are not “irremedia-

bly defective,” and thus dismiss them without prejudice.

See, e.g., Marts v. Hines, 117 F. 3d 1504, 1505 (CA5 1997);

see also Jackson v. Florida Dept. of Financial Servs., 479

Fed. Appx. 289, 292 (CA11 2012) (similarly if less com-

monly, dismissing a malicious action without prejudice).

Indeed, this Court has suggested that a trial court might

abuse its discretion by dismissing an IFP suit with preju-

dice if “frivolous factual allegations [can] be remedied

through more specific pleading.” Denton v. Hernandez, 504

U. S. 25, 34 (1992). So on Lomax’s own metric—whether

down the road the plaintiff ’s claim might return—the dis-

missals he claims would be outliers in Section 1915(g) in

fact would have company. And because that is true, his rea-

Cite as: 590 U. S. ____ (2020) 7

Opinion of the Court

son for excluding those decisions from the provision col-

lapses. If dismissals without prejudice for frivolousness

count as a strike under Section 1915(g), then why not for

failure to state a claim too?

Still more fundamentally, Lomax is wrong to suggest that

every dismissed action encompassed in Section 1915(g)

must closely resemble frivolous or malicious ones. The

point of the PLRA, as its terms show, was to cabin not only

abusive but also simply meritless prisoner suits. Before the

PLRA, the statute governing IFP claims targeted frivolous

and malicious actions, but no others. See Neitzke v. Wil-

liams, 490 U. S. 319, 328 (1989). In the PLRA, Congress

chose to go further—precisely by aiming as well at actions

that failed to state a claim. The theory was that a “flood of

nonmeritorious claims,” even if not in any way abusive, was

“effectively preclud[ing] consideration of ” suits more likely

to succeed. Jones, 549 U. S., at 203. So we cannot, in the

interest of “harmonization,” interpret the phrase “failure to

state a claim” based on the pre-existing terms “frivolous”

and “malicious.” Cf. Babbitt v. Sweet Home Chapter, Com-

munities for Great Ore., 515 U. S. 687, 702, 705 (1995) (re-

jecting use of the noscitur canon when “the Senate went out

of its way to add” a “broad word” to a statute). That would

defeat the PLRA’s expansion of the statute beyond what

was already there.

III

The text of the PLRA’s three-strikes provision makes this

case an easy call. A dismissal of a suit for failure to state a

claim counts as a strike, whether or not with prejudice. We

therefore affirm the judgment below.

It is so ordered.