# Lomax v. Ortiz-Marquez > Supreme Court of the United States · June 8, 2020 · 590 U.S. 595 URL: https://www.frixlaw.com/law-library/cases/4539663 ## Case - **Full name:** Arthur J. LOMAX, Petitioner v. Christina ORTIZ-MARQUEZ, Et Al. - **Court:** Supreme Court of the United States - **Decided:** June 8, 2020 - **Citations:** 590 U.S. 595; 140 S. Ct. 1721; 207 L. Ed. 2d 132 - **Precedential status:** Published - **Opinion:** Opinion by Kagan - **Judges:** Elana Kagan - **Cited by:** 855 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4539663 ## How later opinions describe it (automated extraction) - holding that regardless of whether the dismissal is with or without prejudice, the dismissal of a prisoner’s civil lawsuit, for failure to state a claim, counts as a strike under the PLRA’s three-strikes rule for purposes of considering IFP status - holding that regardless of whether the dismissal is with prejudice or without prejudice, the dismissal of a prisoner’s civil lawsuit, for failure to state a claim, counts as a strike under the PLRA’s three-strikes rule for IFP status - holding that an in forma pauperis action that fails to state a claim upon which relief can be granted may be dismissed without prejudice but still qualify as a “strike” under the Prison Litigation Reform Act, 28 U.S.C. § 1915 (g) - holding that the statute’s language “applies to [dismissals] issued both with and without prejudice to a plaintiff’s ability to reassert his claim in a later action” - holding that a district court may not, at the time it dismisses a complaint under §1915(e), determine that the dismissal will count as a strike in the future application of § 1915(g ## Opinion text (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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4539663. Public record. Not legal advice.