Haddrick Byrd v. Robert Shannon

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 11-1744

______

HADDRICK BYRD,

Appellant

v.

ROBERT SHANNON, Superintendent SCI-Frackville;

V. STANISHEFSKI, Corrections Health

Care Administrator SCI-Frackville;

JACK ROBINSON, Supervising Nurse SCI-Frackville;

H. SPENCER, Nurse SCI-Frackville;

DORINA VARNER,

Chief Grievance Officer, Camp Hill, PA

______

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-09-cv-01551)

District Judge: Honorable Sylvia H. Rambo

______

Argued October 3, 2012

Before: FUENTES, FISHER and COWEN, Circuit Judges.

(Filed: March 11, 2013)

Haddrick Byrd

Frackville SCI

1111 Altamont Boulevard

Frackville, PA 17931

Pro Se Appellant

Richard H. Frankel, Esq.

Drexel University

Earle Mack School of Law

3320 Market Street

Philadelphia, PA 19104

Alexandra Scanlon (ARGUED)

Drexel University

Earle Mack School of Law

L324

3320 Market Street

Philadelphia, PA 19104

Rebecca Trela (ARGUED)

Drexel University

Earle Mack School of Law

L324

3320 Market Street

Philadelphia, PA 19104

Amicus Appellant / Court

Appointed Amicus Curiae

2

Raymond W. Dorian, Esq. (ARGUED)

Pennsylvania Department of Corrections

Office of Chief Counsel

1920 Technology Parkway

Mechanicsburg, PA 17050

Counsel for Appellees

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

Haddrick Byrd, a prisoner at SCI-Frackville, filed a

pro se complaint under 42 U.S.C. § 1983 in the Middle

District of Pennsylvania alleging that various Pennsylvania

Department of Corrections (“DOC”) employees violated his

Eighth Amendment rights and were negligent under state law.

Byrd appeals the District Court‟s order granting summary

judgment to DOC employees V. Stanishefski, Jack Robinson,

and H. Spencer, and the District Court‟s refusal to reconsider

its order granting a motion to dismiss for DOC employees

Robert Shannon and Dorina Varner. Instead of paying a

docketing fee on appeal, Byrd filed a motion to proceed in

forma pauperis (“IFP”). For the reasons set forth below, we

will deny Byrd‟s request to proceed IFP.

I.

At all times material to this appeal, Byrd was an

inmate at SCI-Frackville. Byrd‟s pro se complaint of August

3

13, 2009 named the following defendants: (1) Robert

Shannon, the Superintendent of SCI-Frackville; (2) V.

Stanishefski, the Corrections Health Care Administrator at

SCI-Frackville; (3) Jack Robinson, the Supervising Nurse at

SCI-Frackville; (4) H. Spencer, a nurse at SCI-Frackville; and

(5) Dorina Varner, the Chief Grievance Officer for the DOC.

Byrd specifically alleges that these DOC employees showed

deliberate indifference to his serious medical needs by failing

to provide him with prescription eye drops for his glaucoma,

thus depriving him of his Eighth Amendment rights and

committing negligence under state law.

Byrd proceeded IFP in the District Court after his

application to do so was granted on September 9, 2009. The

District Court, on February 22, 2010, granted defendants‟

motion to dismiss in part, dismissing Shannon and Varner.

On February 28, 2011, the District Court granted the

remaining defendants‟ motion for summary judgment.

On April 5, 2011, Byrd filed a motion to proceed IFP

on appeal. That same day, the Clerk‟s Office notified Byrd

that he had “three strikes” under 28 U.S.C. § 1915(g) and had

to file a motion showing that he was in imminent danger of

serious physical injury in order to be eligible for IFP status.

Byrd‟s three potential strikes included two cases that were

clearly dismissed for failure to state a claim: (1) Byrd v.

Parris, No. 99-cv-00769 (E.D. Pa. Oct. 15, 1999) and

(2) Byrd v. City of Philadelphia, No. 06-cv-01957 (E.D. Pa.

Aug. 10, 2006). The other potential strike, Byrd v. Gillis,

C.A. No. 01-3868 (3d Cir. July 30, 2002), was an appeal that

was dismissed by this Court under 28 U.S.C. § 1915(e)(2)(B)

because it was “without merit.” In response to the

4

notification by the Clerk‟s Office, Byrd did not file a motion

alleging imminent danger; instead, he submitted a response

on April 19, 2011, arguing that the Clerk‟s Office made a

mistake in determining that he had three strikes. Byrd noted

that, although he brought two prior actions that were

dismissed for failure to state a claim, he did not proceed IFP

in those actions.

In the January 12, 2012 order appointing amicus

curiae, this Court instructed amicus to address whether

dismissals of non-IFP actions and appeals can count as strikes

under § 1915(g), or whether only IFP actions and appeals can

count as strikes. The Court also stated that “[a]micus counsel

may wish to address the relevance, if any, of the fact that 28

U.S.C. section 1915(e) and section 1915(g) use similar

phrasing . . . that varies slightly from the language of Fed. R.

Civ. P. 12(b)(6).”

On February 28, 2012, amicus requested to expand the

scope of its appointment. Specifically, amicus sought leave

to address whether this Court‟s dismissal of one of Byrd‟s

previous cases, Byrd v. Gillis, C.A. No. 01-3868 (3d Cir. July

30, 2002), constituted a strike. On March 8, 2012, this Court

granted in part and denied in part amicus‟s motion to expand

the scope of its representation. The Court permitted amicus

to argue, with respect to Byrd v. Gillis, that “when an action is

dismissed for a reason that is unclear, that dismissal does not

count as a strike.”

II.

5

We have jurisdiction of this matter as an appeal of a

final decision in the District Court. 28 U.S.C. § 1291. The

District Court did not address whether Byrd‟s eligibility for

IFP status was foreclosed by the three strikes provision of 28

U.S.C. § 1915(g). We now address this issue as a matter of

first impression.1

III.

A.

In order to determine Byrd‟s IFP eligibility, we must

decide whether “strikes” under 28 U.S.C. § 1915(g) can be

accrued in actions or appeals where the prisoner has prepaid

the filing fee, or whether “strikes” can only be accrued in IFP

actions or appeals. Section 1915(g), enacted as a part of the

Prison Litigation Reform Act of 1996 (“PLRA”), states:

1

Because we hold that Byrd is not entitled to IFP

status due to the three strikes provision of 28 U.S.C.

§ 1915(g), and Byrd has not paid the docketing fee, we do not

reach the merits of Byrd‟s appeal. See Hafed v. Fed. Bureau

of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011) (“The „three

strikes‟ provision of the [IFP] statute applicable to indigent

prisoners requires so-called „frequent filer‟ prisoners to

prepay the entire filing fee before federal courts may consider

their civil actions and appeals.”). If Byrd pays the docketing

fee within 14 days of the issuance of the order in this case,

see 3d Cir. L.A.R. 3.3, L.A.R. Misc. 107.1, the appeal shall

be returned to this panel for further consideration of the

merits.

6

“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.”

Three of our sister courts of appeals have held that

strikes may be accrued in actions or appeals regardless of

whether the prisoner has prepaid the filing fee or is

proceeding IFP. See Burghart v. Corr. Corp. of Am., 350

Fed. App‟x 278, 279 (10th Cir. 2009); Hyland v. Clinton, 3

Fed. App‟x 478, 479 (6th Cir. 2001); Duvall v. Miller, 122

7

F.3d 489, 490 (7th Cir. 1997). No court of appeals has held

that strikes may only be accrued in IFP actions or appeals.2

This situation presents an issue of statutory

interpretation. Our task is to give effect to the will of

Congress, and where Congress‟s will has been expressed in

language that has a reasonably plain meaning, that language

must ordinarily be regarded as conclusive. Negonsott v.

Samuels, 507 U.S. 99, 104 (1993); see also Caraco Pharm.

Labs., LTD v. Novo Nordisk, 132 S. Ct. 1670, 1680 (2012)

(“We begin where all such inquiries must begin: with the

language of the statute itself.”). If the language of the statute

has a reasonably plain meaning, then our sole function is to

2

This Court, in appointing amicus, expressed its

understanding that there was a circuit split on this issue

because the U.S. Court of Appeals for the Tenth Circuit had

implied that only IFP actions or appeals could be counted as

strikes under § 1915(g). See Jennings v. Natrona Cnty. Det.

Ctr. Med. Facility, 15 F.3d 775, 780-81 (10th Cir. 1999)

(listing only dismissals under § 1915(e)(2)(B), a provision

that only applies to IFP actions or appeals, as the types of

dismissals that count as strikes). Amicus, in a commendable

act of candor, brought to our attention the fact that the Tenth

Circuit, in subsequent cases, rejected the argument that

§ 1915(g) strikes could only be accrued in IFP actions or

appeals. See Hafed, 635 F.3d at 1177 (holding that dismissals

under § 1915A, a provision that is not limited to IFP actions

or appeals, can count as strikes); Burghart v. Corr. Corp. of

Am., 350 Fed. App‟x 278, 279 (10th Cir. 2009) (explicitly

holding that non-IFP actions or appeals can count as strikes).

8

enforce the statute‟s language. United States v. Ron Pair

Enters., Inc., 489 U.S. 235, 241 (1989).

In determining whether the language of a particular

statutory provision has a plain meaning, the language shall be

considered in the context of the entire statute. Robinson v.

Shell Oil Co., 519 U.S. 337, 341 (1997) (stating that statutory

interpretation focuses on “the language itself, the specific

context in which that language is used, and the broader

context of the statute as a whole”); see also Abdul-Akbar v.

McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (en banc)

(interpreting one particular section of the PLRA, 28 U.S.C.

§ 1915(g), in the context of the PLRA as a whole). The plain

meaning of statutory language is not conclusive only when

“the literal application of a statute will produce a result

demonstrably at odds with the intentions of the drafters.” Ron

Pair Enters., 489 U.S. at 242.

Statutory purpose and legislative history may be

referenced only if the statutory language is without a plain

meaning, i.e., if the statutory language is ambiguous. In re

Phila. Newspapers, LLC, 599 F.3d 298, 304 (3d Cir. 2010).

Statutory language is ambiguous only where it is “reasonably

susceptible of different interpretations.” Id. (quoting Nat’l

R.R. Passenger Corp. v. Atchinson Topeka & Santa Fe Ry.

Co., 470 U.S. 451, 473 n.27 (1985)).

Here, the statutory language has a reasonably plain

meaning – “an action or appeal” is not limited to an IFP

action or appeal; rather, it refers to both IFP and non-IFP

actions or appeals. The three strikes provision, § 1915(g),

does not make an explicit exception for previous actions or

9

appeals where the prisoner was not granted IFP status. See

Burghart, 350 Fed. App‟x at 279 (“[Plaintiff] argues that

Congress did not intend § 1915(g) to apply to prisoners who

had not filed their earlier cases IFP. However, § 1915(g)

makes no distinction.”); Hyland, 3 Fed. App‟x at 479

(“[Section] 1915(g) does not distinguish between prior in

forma pauperis actions and prior actions in which the fee was

paid.”); Duvall, 122 F.3d at 490 (“[Section 1915(g)] does not

say, „brought an action or appeal in forma pauperis,‟ or

„brought an action or appeal under this section.‟”).

We acknowledge that this Court, in Santana v. United

States, found the phrase “civil actions” in another part of the

PLRA to “lack a plain meaning.” 98 F.3d 752, 755 (3d Cir.

1996) (interpreting 28 U.S.C. § 1915(b) and holding that the

filing fee requirements of the PLRA with regard to “civil

actions” did not apply to IFP habeas corpus petitions and

appeals). This Court‟s analysis in Santana, however, focused

on the unique nature of habeas corpus actions. Id. at 754. In

contrast to habeas corpus actions, standard non-IFP actions

are not, “in effect, hybrid actions whose nature is not

adequately captured by the phrase „civil action.‟” Id. Thus,

Santana does not compel a conclusion that the phrase “an

action or appeal” in § 1915(g) lacks a plain meaning.

The same can be said for Grayson v. Mayview State

Hospital, wherein this Court stated that § 1915(e)(2)(B),

which uses language that closely tracks the three strikes

provision of § 1915(g), is limited to IFP actions or appeals.

293 F.3d 103, 109 n.10 (3d Cir. 2002) (“Although the

language of § 1915(e)(2) does not expressly limit the

provision‟s reach to in forma pauperis claims, we believe

10

Congress intended it to be so limited.”). We do not find

Grayson to be controlling. First, the finding in Grayson –

that § 1915(e)(2) applies only to IFP actions or appeals – is

dicta; it was not necessary to the Court‟s holding, which was

that the district court was required to grant leave to amend

before dismissing a pro se inmate‟s action for failure to state a

claim. Id. at 114. Second, the Grayson Court based its

finding in part on the fact that any alternative interpretation of

§ 1915(e)(2)(B) would render similar provisions of the PLRA

superfluous. Id. at 109 n.10 (citing Benson v. O’Brian, 179

F.3d 1014, 1017 (6th Cir. 1999) (“[I]f all actions, whether

pursued in forma pauperis or not, are to be screened by the

district court pursuant to § 1915(e)(2), the specific prisoner

complaint screening provision, § 1915A, would be rendered

largely superfluous.”)). In contrast to § 1915(e)(2)(B), if

§ 1915(g) were interpreted to encompass non-IFP actions and

appeals, no other provision of the PLRA, including § 1915A,

would be rendered superfluous.

Finally, we acknowledge amicus‟s argument that the

language difference between § 1915(g) and Rule 12(b)(6) of

the Federal Rules of Civil Procedure is instructive as to the

meaning of “an action or appeal.” Section 1915(g), just like

the IFP specific provision, § 1915(e)(2)(B), which was the

focus of Grayson, refers to an action that “fails to state a

claim upon which relief may be granted,” while Rule 12(b)(6)

refers to an action that “fails to state a claim upon which

relief can be granted.” Amicus argues that this contrast

between “may” and “can” indicates that Congress used “may”

in § 1915(g) as a signal to reference § 1915(e) dismissals,

which occur only in IFP actions and appeals, as opposed to

11

Rule 12(b)(6) dismissals, which occur in both IFP and non-

IFP actions. Although this argument is of some persuasive

effect, it does not render the phrase “an action or appeal” to

be without a plain meaning. The bottom line remains that

Congress could have easily differentiated between IFP and

non-IFP actions or appeals in the language of § 1915(g), but it

did not. It is more rational to suppose that if Congress

intended to make an exception for non-IFP cases in

§ 1915(g), then it would have explicitly done so, rather than

merely using the word “may” instead of “can.”

Thus, strikes may be accrued in actions or appeals

regardless of whether the prisoner has prepaid the filing fee or

is proceeding IFP, and Byrd‟s previous non-IFP actions,

which were dismissed for failure to state a claim, count as

strikes for purposes of § 1915(g). Because this literal

application of the statute will not likely increase the incidence

of frivolous suits from prisoners, it will not “produce a result

demonstrably at odds with the intentions of the drafters.” Ron

Pair Enters., 489 U.S. at 242.

B.

Amicus, in support of Byrd, argues that even if non-

IFP actions and appeals can count as strikes, Byrd has only

two strikes, rather than three, because this Court‟s dismissal

of Byrd‟s appeal in Byrd v. Gillis, C.A. No. 01-3868 (3d Cir.

July 30, 2002) under § 1915(e)(2)(B) does not constitute a

strike. We disagree.

In Byrd v. Gillis, Byrd brought suit in the Middle

District of Pennsylvania against prison officials in their

12

individual and official capacities for failing to investigate a

false misconduct report against him. No. 01-cv-0576, slip op.

at 1 (M.D. Pa. Sept. 21, 2001). As a result of the misconduct

report, Byrd was placed in the restrictive housing unit for 60

days. Id. at 5. Byrd alleged that he was “subjected to the

denial of due process, equal protection under the law, denial

of religious practices, retaliation, malfeasance, non-feasance,

and misfeasance.” Id. at 1. The Magistrate Judge3 granted

the defendants‟ motion for summary judgment and concluded

that, except for Byrd‟s due process claim regarding his

misconduct hearing, Byrd failed to exhaust his administrative

remedies. Id. at 6-12. In regard to Byrd‟s due process claim,

the Magistrate Judge held that Byrd‟s placement in the

restricted housing unit did not implicate a protected liberty

interest under Sandin v. Conner, 515 U.S. 472, 483-84

(1995). Id. at 14-16. Additionally, in regard to Byrd‟s

official capacity claims, the Magistrate Judge concluded that

the prison officials were immune from suit. Id. at 13-14.

Byrd‟s state law claims were held to be barred under the

Eleventh Amendment. Id.

On appeal, this Court held that the Magistrate Judge

properly granted summary judgment. Byrd v. Gillis, C.A. No.

01-3868, slip op. at 4 (3d Cir. July 30, 2002). The Court

explicitly agreed that Byrd failed to exhaust his

administrative remedies, that the alleged conduct did not

implicate a protected liberty interest, and that the Eleventh

3

The parties consented to proceed before a Magistrate

Judge pursuant to 28 U.S.C. § 636(c).

13

Amendment barred Byrd‟s state law claims.4 Id. at 3-4. The

Court ultimately dismissed the entire appeal under

§ 1915(e)(2)(B) because it was “without merit.” Id. at 4.

Section 1915(e)(2)(B) provides:

“[T]he court shall dismiss the case at any time if

the court determines that – the action or appeal

– (i) is frivolous or malicious; (ii) fails to state a

claim on which relief may be granted; or (iii)

seeks monetary relief against a defendant who

is immune from such relief.”

The consideration of whether a dismissal under

§ 1915(e)(2)(B) should count as a strike under § 1915(g)

sometimes requires an examination of the § 1915(e)(2)(B)

dismissal. This is because § 1915(e)(2)(B) includes a ground

for dismissal – defendant‟s immunity from suit – that does

not qualify as a strike under § 1915(g), which involves

dismissals for actions or appeals that are “frivolous,

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

granted.”

We decline to adopt a categorical rule that courts, in

dismissing actions and appeals under § 1915(e)(2)(B), must

precisely indicate that the action or appeal is “frivolous or

4

The Court did not expressly indicate its agreement

with the Magistrate Judge that the defendants were immune

from suit with regard to Byrd‟s claims against them in their

official capacities.

14

malicious” or “fails to state a claim on which relief may be

granted” in order for the dismissal to count as a strike under

§ 1915(g). Instead, we adopt a position similar to that of the

U.S. Court of Appeals for the Tenth Circuit and clarify that

when a court dismisses an action or appeal under

§ 1915(e)(2)(B), without more specificity, our determination

of whether the dismissal constitutes a strike is “not formalistic

or mechanical; rather, we must consider the nature of the

dismissal and . . . whether the dismissal fits within the

15

language of § 1915(g).”5 Hafed v. Fed. Bureau of Prisons,

635 F.3d 1172, 1178 (10th Cir. 2011).6

Our dissenting colleague emphasizes that strikes

should not accrue for “mixed dismissals,” i.e., those

dismissals that are based in part on a § 1915(g) ground, and in

part on other grounds. We agree. In applying this case-

5

In adopting this position, we do not condone a

reviewing court holding that a previous dismissal constitutes

a strike under § 1915(g) merely because frivolousness is

suspected or the phrase “without merit” was used in the

dismissal. Instead, a case-specific, non-mechanical

examination of the dismissal – which could lead to a strike

being accrued where the dismissing court did not precisely

indicate that the action or appeal was frivolous, malicious, or

failed to state a claim – is warranted only when the action or

appeal was dismissed generally under a PLRA provision,

such as § 1915(e)(2)(B), without more specificity, as was the

case in Byrd v. Gillis.

6

The Hafed case is instructive. There, a district court

ambiguously dismissed a prisoner‟s complaint under 28

U.S.C. § 1915A(b) without clearly indicating whether it was

relying on § 1915A(b)(1) for frivolousness, or § 1915A(b)(2)

for suing an immune defendant. The Court of Appeals

determined that even though the district court mentioned the

defendant‟s immunity, “the immunity ground for dismissal

was subsumed in frivolousness.” The Court thus counted the

dismissal as a strike for purposes of § 1915(g). Hafed, 635

F.3d at 1178.

16

specific, non-mechanical approach, we consider the nature of

the § 1915(e)(2)(B) dismissal and determine whether the

entire dismissal fits within the language of § 1915(g). See

Tolbert v. Stevenson, 635 F.3d 646, 651-52 (4th Cir. 2011)

(“[Section] 1915(g) requires that a prisoner‟s entire „action or

appeal‟ be dismissed on enumerated grounds in order to count

as a strike”).

In Byrd v. Gillis, in addition to affirming that Byrd

failed to exhaust his administrative remedies and failed to

identify a protected liberty interest, the Court agreed with the

Magistrate Judge‟s conclusion that the Eleventh Amendment

barred Byrd‟s state law claims. The Court, however, did not

indicate that it was relying on § 1915(e)(2)(B)(iii)

(concerning immunity) to dismiss any part of the appeal.

Instead, in dismissing the appeal in its entirety, the Court

stated generally that it was relying on § 1915(e)(2)(B)

because the appeal was “without merit.” Consequently, we

must determine whether the dismissal of the appeal under

§ 1915(e)(2)(B) because it was “without merit” fits within the

language of § 1915(g).

In making this determination, we reiterate that a

dismissal under § 1915(e)(2)(B) occurs because the action or

appeal (1) is frivolous or malicious; (2) fails to state a claim;

or (3) seeks monetary damages from a defendant who is

immune from suit. With regard to an appeal of summary

judgment, such as in Byrd v. Gillis, the reason for a dismissal

under § 1915(e)(2)(B) is necessarily limited to either the

appeal‟s frivolous or malicious nature or the defendant‟s

immunity from suit. For the following reasons, we believe

that the Court‟s dismissal of Byrd‟s appeal under

17

§ 1915(e)(2)(B) because it was “without merit” is

appropriately viewed as a dismissal for frivolousness, rather

than as a dismissal for suing an immune defendant.

First, the Court dismissed the entire appeal as being

“without merit,” and a dismissal based on the appeal‟s

frivolous nature addresses the entire appeal, whereas a

dismissal based on the defendants‟ immunity addresses only

some of Byrd‟s claims; namely, his state law claims and his

claims against the defendants in their official capacities.

Second, the phrase “without merit” and similar variations are

often associated with the word “frivolous” in the context of

§ 1915. See Deutsch v. United States, 67 F.3d 1080, 1085 (3d

Cir. 1995) (finding that a prisoner‟s “claim based on an

indisputably meritless legal theory may be dismissed as

frivolous [under § 1915]”) (emphasis added). This is true in

other areas of our jurisprudence as well. For example, in

regard to damages for frivolous appeals under Rule 38 of the

Federal Rules of Appellate Procedure, we have held that “[a]n

appeal is frivolous if it is wholly without merit.” Quiroga v.

Hasbro, Inc., 943 F.2d 346, 347 (3d Cir. 1991) (emphasis

added); see also Hilmon Co. (V.I.) v. Hyatt Int’l, 899 F.2d

250, 251 (3d Cir. 1990) (“In this circuit an appeal is

considered frivolous when it is utterly without merit.”)

(emphasis added) (internal quotation marks omitted). Also,

in interpreting the Federal Revenue Code, we have held that a

civil penalty is warranted when “the taxpayer assert[s] a

position that is frivolous, i.e., meritless, from the perspective

of the tax laws.” Kahn v. United States, 753 F.2d 1208, 1214

(3d Cir. 1985) (emphasis added).

18

Therefore, this Court‟s dismissal of the appeal in Byrd

v. Gillis under § 1915(e)(2)(B) because it was “without merit”

constitutes a strike for purposes of § 1915(g). Byrd has three

strikes and is ineligible for IFP status.

IV.

For the foregoing reasons, we will deny Byrd‟s request

to proceed IFP in this appeal.7

7

We express gratitude to the director and students of

the Appellate Litigation Clinic at the Earle Mack School of

Law at Drexel University for an excellent presentation of the

issues as court-appointed amicus curiae.

19

FUENTES, Circuit Judge, concurring in part and dissenting

in part:

As noted by the majority, under the “three strikes”

provision of 28 U.S.C. § 1915(g), once a prisoner has, on

three occasions, “brought an action or appeal . . . that was

dismissed on the grounds that it is frivolous, malicious, or

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

prisoner is barred from bringing any further civil actions

under the Prison Litigation Reform Act of 1996 (“PLRA”).

28 U.S.C. § 1915(g). In my view, the primary question in this

appeal is whether an action that is not explicitly dismissed for

being “frivolous, malicious, or fail[ing] to state a claim upon

which relief may be granted” can count as a strike under

§ 1915(g). The majority holds that it can. I respectfully

disagree.

At issue is our dismissal of Byrd‟s appeal in Byrd v.

Gillis, which we dismissed as being “without merit . . .

pursuant to 28 U.S.C. § 1915(e)(2)(B).” C.A. No. 01-3868,

slip op. at 4 (3d Cir. July 30, 2002). I disagree with the

majority that this dismissal counts as Byrd‟s second strike.

Section 1915(e)(2)(B) of the PLRA provides that a court shall

dismiss an action or appeal at any time if it “determines that –

the action or appeal – (i) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such

relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, while the first two

prongs of § 1915(e)(2)(B) track the language of § 1915(g),

the third prong – defendant‟s immunity from suit – is not a

basis for a strike under § 1915(g).

In dismissing Byrd‟s appeal in Gillis, we did not

specify which prong of § 1915(e)(2)(B) we relied on.

However, as the majority notes, “[w]ith regard to an appeal of

summary judgment, such as in Byrd v. Gillis, the reason for a

dismissal under § 1915(e)(2)(B) is necessarily limited to

either the appeal‟s frivolous or malicious nature or the

defendant‟s immunity from suit.” Majority Op. at 17. It is

undisputed that the Gillis court found that Byrd‟s state law

claims were foreclosed by the Eleventh Amendment because

the prison officials involved were immune from suit.

Furthermore, while it ultimately determined that Byrd‟s

appeal lacked merit, the Gillis court made no explicit finding

that the claims foreclosed by immunity were “frivolous,

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

be granted.”

As the Seventh Circuit has noted, “we cannot read into

[a court‟s] decision a ground for dismissal that [it] did not

state, and which would also substantially limit [the prisoner‟s]

ability to file a lawsuit.” Haury v. Lemmon, 656 F.3d 521,

523 (7th Cir. 2011). Because the dismissal in Gillis was not

explicitly and entirely based on grounds covered by

§ 1915(g), I would hold that the 2002 dismissal in Gillis does

not qualify as a strike. Accordingly, I respectfully dissent

with respect to Part III.B of the majority opinion.

The weight of circuit authority indicates that “mixed

dismissals” – those based in part on a § 1915(g) strike

ground, and in part on other grounds – do not count as

strikes.1 In Thompson v. Drug Enforcement Administration,

1

See Tolbert v. Stevenson, 635 F.3d 646, 647, 651-52 (4th

Cir. 2011); Haury v. Lemmon, 656 F.3d 521, 523 (7th Cir.

2

the D.C. Circuit held that “actions containing at least one

claim falling within none of the three strike categories . . . do

not count as strikes.” 492 F.3d 428, 432 (D.C. Cir. 2007).

The Thompson court reasoned that “[s]ection 1915(g) speaks

of dismissal of „actions and appeals,‟ not „claims.‟” Id.

Furthermore, in Tolbert v. Stevenson, 635 F.3d 646 (4th Cir.

2011), the Fourth Circuit concluded that, “consistent with the

view of the majority of circuits to consider the issue, [] the

plain language of § 1915(g) applies only to actions dismissed

entirely as frivolous, malicious, or for failing to state a

claim.” Id. at 647 (emphasis in original). See also Haury,

656 F.3d at 523 (“Because the district court . . . did not

dismiss the entirety of [the prisoner‟s] earlier case for one of

the three bases listed in § 1915(g), the district court erred in

part on grounds of immunity.”). In light of this authority, I

would agree with the view that, to count as a strike, a

dismissal must rest entirely on grounds set forth in § 1915(g).

2011); Thompson v. Drug Enforcement Admin., 492 F.3d 428,

432, 440 (D.C. Cir. 2007); see also Mayfield v. Texas Dep’t

of Criminal Justice, 529 F.3d 599, 617 (5th Cir. 2008)

(finding that prisoner did not incur a strike because some of

his claims should have survived through the summary

judgment stage); Powells v. Minnehaha Cnty. Sheriff Dep’t,

198 F.3d 711, 713 (8th Cir.1999) (“The reversal as to some of

Powells‟s claims in No. 98-4160 eliminates one of the „three

strikes‟ that was the basis for the District Court‟s dismissal of

the two later-filed cases.”). But see Pointer v. Wilkinson, 502

F.3d 369, 376 (6th Cir.2007) (“[W]here an entire complaint is

dismissed, in part for failure to exhaust and in part for one of

the grounds stated in § 1915(g), the dismissal should count as

a strike.”).

3

A dismissal based in part on grounds not stated in § 1915(g)

should not count as a strike.

The majority agrees with this assessment, see Majority

Op. at 16, and acknowledges that the Gillis court did not

specify which prong of § 1915(e)(2)(B) it relied on in

dismissing Byrd‟s suit, id. at 17. However, it

decline[s] to adopt a categorical rule that courts,

in dismissing actions and appeals under

§ 1915(e)(2)(B), must precisely indicate that the

action or appeal is “frivolous or malicious” or

“fails to state a claim on which relief may be

granted” in order for the dismissal to count as a

strike under § 1915(g).

Id. at 14-15. Instead, it adopts a position similar to that of the

Tenth Circuit in Hafed v. Federal Bureau of Prisons, and

holds that,

when a court dismisses an action or appeal

under § 1915(e)(2)(B), without more

specificity, our determination of whether the

dismissal constitutes a strike is “not formalistic

or mechanical; rather, we must consider the

nature of the dismissal and . . . whether the

dismissal fits within the language of § 1915(g).”

Id. at 15-16 (quoting Hafed v. Fed. Bureau of Prisons, 635

F.3d 1172, 1178 (10th Cir. 2011)).

Applying this holding, the majority concludes that

Gillis does not constitute a “mixed dismissal” (in part of

4

grounds of immunity), but “is appropriately viewed as a

dismissal for frivolousness, rather than as a dismissal for

suing an immune defendant.” Id. at 18. In arriving at this

determination the majority reasons that,

the [Gillis] Court dismissed the entire appeal as

being “without merit,” and a dismissal based on

the appeal‟s frivolous nature addresses the

entire appeal, whereas a dismissal based on the

defendants‟ immunity addresses only some of

Byrd‟s claims; namely, his state law claims and

his claims against the defendants in their

official capacities.

Id. (emphasis in original). The majority appears to be

operating under the assumption that, because the Gillis court

dismissed Byrd‟s entire appeal under § 1915(e)(2)(B), it must

have dismissed each of the claims brought on appeal under

the same prong of § 1915(e)(2)(B). This is not necessarily so.

Indeed, it is entirely possible that, in dismissing the

appeal as “without merit” under § 1915(e)(2)(B), the Gillis

court intended to dismiss Byrd‟s state law claims under

§ 1915(e)(2)(B)(iii) as foreclosed by immunity, and the rest

of his claims under § 1915(e)(2)(B)(i) as frivolous. The

majority‟s reliance on the fact that the Gillis court “did not

indicate that it was relying on § 1915(e)(2)(B)(iii)

(concerning immunity) to dismiss any part of the appeal,” id.

at 17, provides little evidence for its position. The Gillis

court also did not indicate that it was relying on

§ 1915(e)(2)(B)(i) (concerning frivolousness) in dismissing

the suit, which it could have – and presumably would have –

if it meant to dismiss the entire suit as frivolous. Instead, it

5

dismissed the appeal as “without merit” under

§ 1915(e)(2)(B), which encompasses dismissal on both

frivolousness grounds and immunity grounds.

In recasting the dismissal in Gillis as one for

frivolousness so that it will fit within the language of

§ 1915(g), the majority contends that “the phrase „without

merit‟” is “often associated with the word „frivolous‟ in the

context of § 1915(g)” as well as “in other areas of our

jurisprudence.” Id. at 18. In my view, the majority

incorrectly equates the words “without merit” with the term

“frivolous.”2 While it is true that a “frivolous” action lacks

merit, it does not follow that an action that is “without merit”

2

Notably, in each of the cases cited by the majority in support

of its position, the words “without merit” and similar

variations are preceded by a modifier, indicating that lack of

merit alone does not make an action “frivolous.” See Deutsch

v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995) (“a claim

based on an indisputably meritless legal theory may be

dismissed as frivolous under [§ 1915]”) (emphasis added);

Quiroga v. Hasbro, Inc., 943 F.2d 346, 347 (3d Cir. 1991)

(“An appeal is frivolous if it is wholly without merit.”)

(emphasis added) (citation omitted); Hilmon Co. (V.I.), Inc. v.

Hyatt Int’l, 899 F.2d 250, 251 (3d Cir. 1990) (“In this circuit

an appeal is considered frivolous when it is utterly without

merit.”) (emphasis added) (internal quotation marks omitted);

Kahn v. United States, 753 F.2d 1208, 1214 (3d Cir. 1985)

(“the government argues that Emily Kahn‟s claim for a „war

tax refusal‟ credit was wholly without legal foundation and

therefore „frivolous‟ within the meaning of section

6702(a)(2)(A)” of the Internal Revenue Code) (emphasis

added). No such modifier was used in the Gillis opinion.

6

is necessarily “frivolous.” See, e.g., McCarthy v. Mayo, 827

F.2d 1310, 1318 (9th Cir. 1987) (“An appeal is frivolous

when the result is obvious and the arguments on appeal

wholly lack merit. An appeal that lacks merit is not

necessarily frivolous.” (citation omitted)). Indeed, courts

routinely use the words “without merit” to refer to arguments

advanced by litigants without meaning to say that the

argument is frivolous. The Supreme Court stressed this

distinction in Anders v. California, in which it found that a

California court‟s determination that a petitioner‟s appeal had

“no merit” explicitly did not constitute a “finding of

frivolity.” Anders, 386 U.S. 738, 743 (1967); see id. (“[The

court] failed . . . to say whether [Charles Anders‟ appeal] was

frivolous or not, but . . . simply found the petition to be

„without merit.‟”). See also Martin v. Knox, 502 U.S. 999,

999 (1991) (noting the distinction between “petitions that are

frivolous and those that are merely meritless”) (Stevens, J.

joined by Blackmun, J.) denying cert. to 945 F.2d 395 (Table)

(3d Cir. 1991). Thus, courts have drawn a clear legal

distinction between these terms that is acutely relevant in this

case.

In any event, the fact that a panel of our Court is

divided as to the meaning of the Gillis court‟s dismissal

indicates the problem with treating it as a strike. Indeed, it is

precisely this sort of uncertainty over the meaning of a prior

court‟s dismissal of an action or appeal that we should seek to

avoid. The majority‟s holding will require reviewing courts

to weed through prior opinions to determine the precise

grounds for a dismissal, and to analyze the decision and

possibly even the pleadings from the underlying case in an

effort to divine what the original court‟s intention may have

7

been. Furthermore, it will invite parties to relitigate the issues

in those prior cases, arguing their level of merit.

I believe that a more appropriate course would be to

conclude that, in order for a dismissal to be counted as a

strike, the decision must explicitly state that the action or

appeal was dismissed entirely for grounds covered by

§ 1915(g). This approach is supported by the D.C. Circuit‟s

reasoning in Thompson. There, the court faced the issue of

whether to treat a dismissal as a strike where no grounds were

given for the dismissal. After “weighing considerations of

fairness, convenience, and probability,” the court held that the

party challenging the in forma pauperis (“IFP”) motion bears

the burden of producing evidence capable of convincing the

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

§ 1915(g)‟s enumerated grounds. Id. at 435 In so doing, the

court reasoned that:

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.

Id. at 435; see also Snider v. Melindez, 199 F.3d 108, 115 (2d

Cir. 1999) (stating in dicta that, for the sake of efficiency, a

district court‟s “judgment should clearly state the reasons for

the dismissal, including whether the dismissal is because the

8

claim is „frivolous,‟ „malicious,‟ or „fails to state a claim,‟ . . .

or for other reasons”). The Seventh Circuit reached a similar

conclusion in Haury, in which it held that the district court‟s

dismissal for lack of jurisdiction did not qualify as a strike,

even if the district court may have also considered the action

frivolous. As noted earlier in this dissent, the Haury court

concluded, “we cannot read into [the court‟s] decision a

ground for dismissal that [it] did not state, and which would

also substantially limit [the prisoner‟s] ability to file a

lawsuit.” Haury, 656 F.3d at 523.

Requiring that an action or appeal be explicitly

dismissed on grounds covered by § 1915(g) in order to count

as a strike has the added benefit of clearly informing

prisoners of their IFP status, a benefit that has been

acknowledged by our sister circuits. See, e.g., Paul v.

Marberry, 658 F.3d 702, 706 (7th Cir. 2011) (“[C]lassifying a

dismissal as a strike depends on the grounds given for it;

since most prisoners litigate their civil claims pro se, they

should not be required to speculate on the grounds the judge

could have or even should have based the dismissal on.”).

Furthermore, this holding is in accordance with the “driving

purpose of the PLRA [which] is to preserve the resources of

both the courts and the defendants in prisoner litigation.”

Thompson, 492 F.3d at 438. That “purpose is best

accomplished by a bright-line rule that avoids the need to

relitigate past cases.” Id.

9

Accordingly, I respectfully dissent with respect to Part

III.B of the majority opinion.3

3

I do not disagree with Part III.A of the majority opinion,

which holds that a strike may be accrued in actions or appeals

regardless of whether the prisoner proceeded IFP or not.

10