Amicus Curiae Brief — Arthur J. Lomax, Petitioner v. Christina Ortiz-Marquez, et al.
Supreme Court briefJan 22, 2020
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No. 18-8369
In the
6upreme Court of the Ziniteb gptate5
ARTHUR JAMES LOMAX,
Petitioner,
v.
CHRISTINA ORTIZ-MARQUEZ ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT
BRIEF OF THE STATES OF
ARIZONA, CONNECTICUT, AND 30 OTHER
STATES AS AMICI CURIAE IN SUPPORT OF
RESPONDENTS
WILLIAM TONG
Connecticut Attorney General
MARK BRNOVICH
Arizona Attorney General
CLARE E. KINDALL
Solicitor General
Counsel of Record
JAMES DONOHUE
Assistant Attorney General
165 Capitol Avenue
Hartford, CT 06106
Clare.Kindall@ct.gov
(860) 808-5261
ORAMEL H. (0.H.) SKINNER
Solicitor General
DREW C. ENSIGN
Deputy Solicitor General
Counsel of Record
ROBERT J. MAKAR
Assistant Attorney General
2005 North Central Avenue
Phoenix, AZ 85004
Drew.Ensign@azag.gov
(602) 542-5025
Counsel for Connecticut
Counsel for Arizona
Additional Counsel Listed on Inside Cover
STEVE MARSHALL
ERIC S. SCHMITT
Alabama Attorney General
Missouri Attorney General
KEVIN G. CLARKSON
TIMOTHY C. Fox
Alaska Attorney General
Montana Attorney General
LESLIE RUTLEDGE
DOUGLAS J. PETERSON
Arkansas Attorney General
Nebraska Attorney General
ASHLEY MOODY
WAYNE STENEHJEM
Florida Attorney General
North Dakota Attorney General
CHRISTOPHER M. CARR
DAVE YOST
Georgia Attorney General
Ohio Attorney General
CLARE E. CONNORS
MIKE HUNTER
Hawai`i Attorney General
Oklahoma Attorney General
LAWRENCE G. WASDEN
ELLEN F. ROSENBLUM
Idaho Attorney General
Oregon Attorney General
KWAME RAOUL
JOSH SHAPIRO
Illinois Attorney General
Pennsylvania Attorney General
CURTIS T. HILL, JR.
PETER F. NERONHA
Indiana Attorney General
Rhode Island Attorney General
THOMAS J. MILLER
ALAN WILSON
Iowa Attorney General
South Carolina Attorney General
DEREK SCHMIDT
JASON RAVNSBORG
Kansas Attorney General
South Dakota Attorney General
DANIEL CAMERON
HERBERT H. SLATERY III
Kentucky Attorney General
Tennessee Attorney General
JEFF LANDRY
KEN PAXTON
Louisiana Attorney General
Texas Attorney General
AARON M. FREY
SEAN D. REYES
Maine Attorney General
Utah Attorney General
DANA NESSEL
ROBERT W. FERGUSON
Michigan Attorney General
Washington Attorney General
QUESTION PRESENTED
Does a dismissal without prejudice for failure to
state a claim count as a strike under 28 U.S.C.
§ 1915(g)?
ii
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES
iii
INTEREST OF AMICUS CURIAE
1
SUMMARY OF ARGUMENT
2
STATUTORY PROVISION INVOLVED
4
ARGUMENT
5
I. MERITLESS SUITS BY PRISONERS
IMPOSE ENORMOUS BURDENS ON
STATES
5
The PLRA Was Enacted To Address The
Enormous Volume Of Prisoner Filings
6
The PLRA Achieved A Significant
Reduction In Prisoner Suits
9
Prisoner Litigation Continues To Impose
12
Significant Burdens On The States
II. DISMISSALS WITHOUT PREJUDICE ARE
PROPERLY REGARDED AS STRIKES
UNDER THE PLRA
17
The PLRA's Plain Language Supports
18
Respondents
The Tenth Circuit's Interpretation Is
Consistent With The Purposes Of The
21
PLRA And Its Context And History
CONCLUSION
25
111
TABLE OF AUTHORITIES
Page(s)
CASES
Booth v. Churner
532 U.S. 731 (2001)
23
Bruce v. Samuels
136 S. Ct. 627 (2016)
24
Christensen v. Harris Cty.
529 U.S. 576 (2000)
18
Coleman v. Tollefson
135 S. Ct. 1759 (2015)
Jama v. ICE
543 U.S. 335 (2005)
Johnson v. Daley
339 F.3d 582 (7th Cir. 2003)
3, 4, 6, 8, 9, 19, 21, 24
18
10-11
Jones v. Bock
549 U.S. 199 (2007)
9
Lewis v. Sullivan
279 F.3d 526 (7th Cir. 2002)
9
McLean v. United States
566 F.3d 391 (4th Cir. 2009)
17
Milner v. Dep't of Navy
562 U.S. 562 (2011)
18
Neitzke v. Williams
490 U.S. 319 (1989)
22
iv
TABLE OF AUTHORITIES—Continued
Page(s)
O'Neal v. Price
531 F.3d 1146 (9th Cir. 2008)
20
Orr v. Clements
688 F.3d 463 (8th Cir. 2012)
20
Paul v. Marberry
658 F.3d 702 (7th Cir. 2011)
20
Porter v. Nussle
534 U.S. 516 (2002)
2, 7, 24
Ross v. Blake
136 S. Ct 1850 (2016)
24
Rotkiske v. Klemm
140 S. Ct. 355 (2019)
18
Woodford v. Ngo
548 U.S. 81 (2006)
6, 24
STATUTES
28 U.S.C. § 1915
1, 3, 4, 18, 19, 20, 22
OTHER AUTHORITIES
141 Cong. Rec. S7498-01
6, 7
141 Cong. Rec. S14408-01
5, 6, 7, 8
V
TABLE OF AUTHORITIES—Continued
Page(s)
DePillis, Lydia, An Arizona inmate filed 3,613
lawsuits from prison last year, Washington Post
(Mar. 20, 2015)
16
Margo Schlanger, Inmate Litigation
116 Harv. L. Rev. 1555 (2003)
9, 10
Schlanger, Margo, Trends in Prison Litigation as the
PLRA Approaches 20
28 Corr. Law Reporter 69 (2017)
7, 12, 16
U.S. Courts, Table C-2 U.S. District Courts - Civil
Cases Filed, by Jurisdiction and Nature of Suit
(2019)
12, 14
INTEREST OF AMICUS CURIAE'
Amici Curiae—the
States of Arizona,
Connecticut, Alabama, Alaska, Arkansas, Florida,
Georgia, Hawai`i, Idaho, Illinois, Indiana, Iowa,
Kansas, Kentucky, Louisiana, Maine, Michigan,
Missouri, Montana, Nebraska, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Rhode Island,
South Carolina, South Dakota, Tennessee, Texas,
Utah, and Washington—have a significant interest
in this case because they bear the brunt of the
impact of the massive volume of suits by prisoners.
Specifically, the States routinely must defend vast
numbers of suits filed by prisoners who use the in
forma pauperis statute, 28 U.S.C. § 1915, to
inundate the courts with litigation without
prepaying filing fees, which in other contexts serve
as important economic deterrence to filing meritless
lawsuits.
In 1996, Congress responded to the immense
volume of suits by prisoners by enacting the Prison
Litigation Reform Act ("PLRA"), which includes a
number of reforms designed to reduce the volume of
prisoner suits.
At issue here is one of those reforms: the "threestrike rule" of 28 U.S.C. § 1915(g), which bars
prisoners from qualifying for in forma pauperis
1 Pursuant to Supreme Court Rule 37.6, amicus curiae
states that no counsel for any party authored this brief in
whole or in part and that no entity or person, aside from
amicus curiae, its members, and its counsel, made any
monetary contribution toward the preparation or submission of
this brief. This brief is filed on behalf of states by their
respective attorneys general, and therefore does not require the
consent of parties under Supreme Court Rule 37.4.
2
status if three or more of their prior actions have
been dismissed on certain specified grounds,
including the failure to state a claim. The threestrike provision is a reasonable restriction that
serves an important role in ameliorating the volume
of meritless suits by prisoners, although the number
of those suits remains vast.
Diluting the three-strike rule would frustrate the
purposes of the PLRA and increase the burden on
the States from prisoner litigation.
For these
reasons, and because the Tenth Circuit's holding
comports with the PLRA's text, context, history, and
purposes, the Amici States respectfully request that
this Court affirm the decision below.
SUMMARY OF ARGUMENT
Suits by prisoners have long constituted a
disproportionate share of suits in federal courts and
imposed enormous burdens on the States. At their
zenith, suits by prisoners alleging unconstitutional
conditions or actions by prison officials represented
over 25% of all civil suits initiated in federal court,
with States defending more than 95% of those suits.2
Congress responded to this immense volume of
suits by enacting the Prison Litigation Reform Act
"to reduce the quantity and improve the quality of
prisoner suits." Porter v. Nussle, 534 U.S. 516, 524
(2002). The PLRA includes a number of reforms to
2 As discussed herein, "prisoner suits" and "suits by prisoners"
refer only to cases challenging prison conditions and/or actions
by prison officials, which are governed by the PLRA, and not
petitions for habeas corpus, petitions under 28 U.S.C. § 2255,
and other collateral challenges to convictions or sentences.
3
accomplish these goals, including the three-strike
rule of 28 U.S.C. § 1915(g), which is at issue here.
The PLRA quickly achieved notable results: the
number of suits declined by a third between 1995
and 1997. The rate of filings per prisoner also
declined significantly, from 24.6 suits per 1,000
inmates to 15.1 in the same time period.
Although the PLRA's achievements are
significant and impressive, the burden of prisoner
suits on the States remains substantial. Suits by
prisoners continue to constitute about ten percent of
all civil filings in federal court, and more than 95%
of those suits are filed by state inmates. Even with
the help of the PLRA's provisions, meritless prisoner
suits continue to represent a significant burden on
the States.
There also has been a worrying uptick in suits
recently. Prisoner suits in the last twelve months
that data is available (July 2018 — July 2019)
numbered 29,450—a 25% increase over the postPLRA low of 23,541 suits in 2006. It is also up
11.3% from a more-recent low of 26,444 suits in
2015.
These statistics underscore both the benefits that
the PLRA has achieved and the need not to become
complacent with enforcement of the PLRA's reforms.
In particular, this Court has properly stressed the
need to interpret the three-strike rule in a manner
that prevents it from becoming "a leaky filter."
Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015).
Diluting the three-strike rule could easily contribute
to a relapse in the direction of the pre-PLRA days.
Fortunately, this Court can prevent backsliding
on the PLRA-achieved gains simply by construing
4
the PLRA based on traditional tools of statutory
interpretation.
The Tenth Circuit correctly
interpreted the PLRA's three-strike provision and
held that when a complaint is dismissed for failure
to state a claim, it counts as a strike, whether the
dismissal is with or without prejudice. The Tenth
Circuit's decision is consistent with the text of the
PLRA, as well as its context, history, and purposes.
Ultimately, the PLRA means what it says: when a
district court dismisses a complaint for failure to
state a claim, that is a "dismiss[al] on the grounds
that ... [the complaint] fail[ed] to state a claim upon
which relief may be granted," 28 U.S.C. § 1915(g)—
whether that dismissal was with or without
prejudice.
In contrast, the contrary rule advocated by
Petitioner would constitute precisely the sort of
"leaky filter" that this Court has warned against and
Congress did not intend. Coleman, 135 S. Ct. at
1764. That sort of enfeeblement of the three-strike
rule would substantially increase the burden on
States by frustrating the effectiveness of an
important tool for reducing the number of meritless
prisoner suits.
The Amici States therefore urge this Court to
adopt the majority rule of the Seventh, Eighth,
Ninth, and Tenth Circuits, and therefore affirm the
judgment of the Tenth Circuit.
STATUTORY PROVISION INVOLVED
The "three-strike" provision of the PLRA at issue
here, 28 U.S.C. § 1915(g), states that:
In no event shall a prisoner bring a civil
action or appeal a judgment in a civil
action or proceeding under this section
5
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.
ARGUMENT
I.
MERITLESS SUITS BY PRISONERS
IMPOSE ENORMOUS BURDENS ON
STATES
The period before enactment of the PLRA
witnessed an explosion in the number of suits
brought by prisoners alleging unconstitutional
conditions or actions by correction officers: rising
"from 2,000 in 1970 to 39,000 in 1994."3 A large
portion of those suits are obviously lacking in merit,
but nonetheless impose significant burdens on the
States defending them.
Congress responded to these burdens by enacting
the PLRA in 1996. That act quickly made progress
in addressing this persistent problem by
substantially reducing the number of suits by
prisoners. But even with the reduction effectuated
3 141 Cong. Rec. S14408-01 (Sept. 19, 1995) (statement of Sen.
Kyl) ("Many people think of prison inmates as spending their
free time in the weight room or the television lounge. But the
most crowded place in today's prisons may be the law library.
Federal prison lawsuits have risen from 2,000 in 1970 to 39,000
in 1994.").
6
by the PLRA, suits by prisoners still impose
substantial burdens on the States. And recent years
have seen a worrying uptick in their numbers.
These burdens emphasize the need to enforce the
PLRA's three-strike provision as actually written, as
the Tenth Circuit has done. In contrast, the rule
advocated by Petitioner is precisely the sort of "leaky
filter" that this Court has warned against. Coleman,
135 S. Ct. at 1764. If adopted by this Court, it would
interfere with the PLRA's hard-won gains in
reducing both frivolous lawsuits by prisoners and the
resulting burdens imposed on the States.
A. The PLRA Was Enacted To
Address The Enormous Volume
Of Prisoner Filings
"Congress enacted the Prison Litigation Reform
Act ... in the wake of a sharp rise in prisoner
litigation in the federal courts." Woodford v. Ngo,
548 U.S. 81, 84 (2006). "The PLRA contains a
variety of provisions designed to bring this litigation
under control." Id.
The years preceding enactment of the PLRA
witnessed an "alarming explosion" of prisoner
lawsuit filings.4 At the time, prisoner litigation
constituted over a quarter of all civil suits in federal
court.5
4
141 Cong. Rec. S14408-01, 514413 (Sept. 27, 1995)
(statement of Sen. Dole) (number of prisoner suits filed "has
grown astronomically—from 6,600 in 1975 to more than 39,000
in 1994.").
5 141 Cong. Rec. S7498-01, 57526 (May 25, 1995) (statement of
Sen. Kyl) ("Nationally, in 1994, a total of 238,590 civil cases
7
Senator Dole put the disproportionate burden
imposed by prisoner suits in perspective when he
observed: "45 percent of the civil cases filed in
Arizona's Federal courts last year were filed by State
prisoners. That means that 20,000 prisoners in
Arizona filed almost as many cases as Arizona's 3.5
million law-abiding citizens."
141 Cong. Rec.
S14408-01 (Sept. 27, 1995) (statement of Sen. Dole).
Congress ultimately concluded that a significant
portion of these suits were patently frivolous and
often involved trivial matters.6 "Floor statements
`overwhelmingly suggested' that Congress sought to
curtail suits qualifying as 'frivolous' because of their
`subject matter,' e.g., suits over 'insufficient storage
locker space,' a defective haircut,' or 'being served
chunky peanut butter instead of the creamy
variety."' Porter, 534 U.S. at 522 (cleaned up)
(citation omitted); see also 141 Cong. Rec. S14408-01,
S14418 (Sept. 27, 1995) (statement of Sen. Kyl) (Suit
was filed over "being denied the use of a Gameboy
video game.").
The vast majority of prisoner suits were brought
by inmates in state prisons: in 1995, for example,
state inmates brought 38,022 of the 39,053 total
suits—or more than 97 percent. See Schlanger,
Margo, Trends in Prison Litigation as the PLRA
Approaches 20 (hereinafter, "Trends in Prison
were brought in U.S. district court. More than one-fourth of
these cases-60,086—were brought by prisoners.").
6 See, e.g., 141 Cong. Rec. S7498-01, S7524 (May 25, 1995)
(statement of Sen. Dole) ("Frivolous lawsuits filed by prisoners
tie up the courts, waste valuable judicial and legal resources,
and affect the quality of justice enjoyed by the law-abiding
population.").
8
Litigation: 2017'2, 28 Corr. Law Reporter 69, 71
(2017) (Table 1).7 Federal inmates, in contrast,
brought only 1,031. Id.
The differences between states were also vast,
and often defy simple explanation. In 1995, for
example, Iowa prisoners were the most litigious in
the U.S. and filed suit at a rate of 101.7 actions per
thousand prisoners. Id. at 73 (Table 2). In contrast,
North Dakota prisoners were the least litigious and
filed less than a tenth as many: 7.2 suits per
thousand prisoners.
Id.
Differences in circuit
precedent cannot explain that differential: both are
in the Eighth Circuit.
Congress also identified two of the chief causes of
the flood of prisoner suits: First, prisoners often
incur no financial cost for filing lawsuits.8 Indeed,
as far back as "1982, 'Congress recognized ... that a
litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant,
lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits."'
Coleman, 135 S. Ct. at 1762 (cleaned up) (citation
omitted). Second, "[p]risoners have ample time on
7
The
article
is
available
at
https://www.law.umich.edu/facultyhome/margoschlanger/Docu
m ents/Publications/Tren ds%20in%20Pris oner%20Litigation%2
Oas%20the%2OPLRA%20Aproaches%2020.pdf.
8 141 Cong. Rec. S14408-01 (Sept. 27, 1995) (statement of Sen.
Dole) ("When average law-abiding citizens file a lawsuit, they
recognize that there could be an economic downside to going to
court. ... so too should a convicted criminal"). By doing so,
legislators hoped to reduce the total number of filings. Id.
("[W]hen prisoners know that they will have to pay these costs
... eventually-they will be less inclined to file a lawsuit in the
first place").
9
their hands and have demonstrated a proclivity for
frivolous suits to harass their accusers, the guards,
and others who caused or manage their captivity."
Lewis v. Sullivan, 279 F.3d 526, 528-29 (7th Cir.
2002).
The PLRA responded to these distorted
incentives by implementing "'a variety of reforms
designed to filter out the bad claims filed by
prisoners and facilitate consideration of the good."'
Coleman, 135 S. Ct. at 1762 (quoting Jones v. Bock,
549 U.S. 199, 204 (2007)) (cleaned up). "Among
those reforms was the 'three strikes' rule," which
was at issue in Coleman, and is again presented
here. Id.
B. The PLRA Achieved A Significant
Reduction In Prisoner Suits
The PLRA quickly began making meaningful
progress in achieving its goals: "the decrease [in
prisoner suits] between 1995 and 1997 was thirtythree percent, and it occurred notwithstanding a ten
percent increase in the incarcerated population."
Margo Schlanger, Inmate Litigation (hereinafter,
"Inmate Litigation: 2003'), 116 Harv. L. Rev. 1555,
1634 (2003). That decrease in suits continued for
several years, as shown in Table 1 and Figure 1.
10
Table 1: Prisoner Suits in FY 1994-2001
Fiscal Year Suits By Prisoners
1994
36,595
1995
39,053
1996
38,262
1997
26,095
1998
24,220
1999
23,512
2000
23,358
2001
22,131
Source: Trends in Prison Litigation: 2017 (Table 1)
Figure 1:
Suits By Prisoners:
FY 1994-2001
45,000
40,000
35,000
30,000
25,000
20,000
15,000
1994 1995 1996 1997 1998 1999 2000 2001
Suits by prisoners also decreased on a perprisoner basis: "In 1995 prisoners filed 39,008
federal civil-rights suits, or 24.6 suits per 1,000
inmates. In 2001 they filed 22,206 such suits, at a
rate of 11.4 per 1,000 inmates." Johnson v. Daley,
11
339 F.3d 582, 595 (7th Cir. 2003) (citing Inmate
Litigation: 2003). That decrease can be seen in
Table 2 and Figure 2.
Table 2: Suits Per Thousand Prisoners FY
1994-2001
Fiscal Year Suits Per Thousand Prisoners
1994
24.9
1995
24.6
1996
23.3
1997
15.1
1998
13.3
1999
12.4
2000
12.2
2001
11.2
Source: Trends in Prison Litigation: 2017 (Table 1)
Figure 2:
Suits Per Thousand Prisoners
FY: 1994-2001
30
25
20
15
10
5
1994 1995 1996 1997 1998 1999 2000 2001
12
Suits by state inmates continue to represent the
overwhelming majority of prisoner suits. In 2015,
for example, state inmates brought 22,543
of the
23,433 total suits—or more than 95 percent. Trends
in Prison Litigation: 2017, 28 Corr. Law Reporter at
71 (Table 1). Federal inmates, in contrast, brought
only 890. Id.
C.
Prisoner Litigation Continues To
Impose Significant Burdens On The
States
Even with the salutary gains achieved by the
PLRA, however, prisoner litigation continues to
impose a substantial burden on the States, as well as
federal courts.
Suits by prisoners continue to
represent ten percent of all civil filings in federal
court: 29,450 of the 293,520 civil suits filed in
federal court for the most recently available year.9
And recent years have witnessed a troubling uptick
in prisoner suits that underscores the need to
preserve the progress attained by the PLRA and
enforce its provisions as written.
Filings per prisoner experienced a substantial
decrease after the enactment of the PLRA, which
was followed by incremental gains for several years.
As indicated in Tables 2 and 3 and Figure 3, filings
per thousand inmates decreased from 23.3 in 1996 to
15.1 in 1997 and 13.3 in 1998. From there slow
additional gains were made until filings reached a
low in 9.6 per thousand prisoners in 2007. The rate
was largely flat for the next five years, but spiked
9 See U.S. Courts, Table C-2 U.S. District Courts - Civil Cases
Filed, by Jurisdiction and Nature of Suit (2019) available at
https://www.uscourts.gov/file/26574/download.
13
from 10.2 in 2012, to 10.8 in 2013 and 11.6 in 2014—
nearly 20% above its floor.
Table 3: Suits Per Thousand Prisoners FY
2002-14
Fiscal Year Suits Per Thousand Prisoners
2002
10.8
2003
10.6
2004
10.1
2005
10.3
2006
9.9
2007
9.6
2008
10.2
2009
10.0
2010
10.1
2011
10.5
2012
10.2
2013
10.8
2014
11.6
Source: Trends in Prison Litigation: 2017 (Table 1)
14
Figure 3:
Suits Per Thousand Prisoners
FY: 2002-2014
12
11
10
9
8
2002 2004 2006 2008 2010 2012 2014
Filings in absolute numbers are broadly similar.
As indicated in Table 4 and Figure 4, filings for
2000-09 averaged 24,434.3 suits while filings for
2010-18 were noticeably higher at 27,768.1.10 And a
marked increase began after 2014: jumping from
26,444 to 31,989 in 2015, followed by relative highs
at 31,183 28,195, and 27,914 for 2016, 2017, and
2018, respectively. And filings for the most recent
10 The statistics for Table 4 and Figure 4 are taken from
official publications of the United States Courts. Specifically,
the numbers are derived from Table C-2 ("U.S. District Courts Civil Cases Filed, by Jurisdiction and Nature of Suit") for each
year, and combine the subcategories "Civil Rights" and "Prison
Conditions" from "Total Prisoner Petitions. This does not
include habeas corpus, sentence challenges, etc. These tables
https://www.uscourts.gov/statisticsare
available
at
reports/caseload-statistics-data-tables?tn=c2&pn=All&t=All&m%5Bvalue%5D%5Bmonth%5D=&y%5Bval
ue%5D%5Byear%5D=
15
twelve-month period for which data is available
(July 2018 — June 2019) were 29,450.
Table 4: Prisoner Suits By Calendar Year
Year
Prisoner Suits
2000
25,314
2001
23,676
2002
24,506
2003
23,775
2004
23,710
2005
24,862
2006
23,541
2007
24,509
2008
25,558
2009
24,892
2010
25,423
2011
25,498
2012
25,135
2013
29,498
2014
30,623
2015
26,444
2016
31,183
2017
28,195
2018
27,914
July 2018 29,450
June 2019
Source: U.S. Courts (Table C-2 for each year)
16
Figure 4:
Suits by Prisoners
2000-present
The importance of the three-strike rule is
particularly acute in the case of the most litigious
prisoners. And it is most apparent when the rule
fails to be effective. For example, one prisoner in
Arizona filed a remarkable 3,613 suits in 2014
alone.11 If the PLRA had successfully limited that
inmate to three suits, it would have represented a
thousand-fold decrease.
The differences between states continue to be
substantial.
In 2014, Montana had the most
litigious inmates, with 46.7 per thousand prisoners,
while Ohio had less than a tenth that rate: 3.7.
Trends in Prison Litigation: 2017, 28 Corr. Law
Reporter at 73 (Table 2).
Filings in the Fourth Circuit—which began
refusing to count dismissals without prejudice as
11 DePillis, Lydia, An Arizona inmate filed 3,613 lawsuits from
prison last year, Washington Post (Mar. 20, 2015) available at
https://www.washingtonpost.com/news/wonk/wp/2015/03/20/anarizona-inmate-filed-3613-lawsuits-from-prison-last-year/
17
strikes in 2009, McLean v. United States, 566 F.3d
391 (4th Cir. 2009)—are notably higher. Every state
in the Fourth Circuit was in the top twenty for
filings per thousand inmates in 2014:
South
Carolina (ranked 5), Maryland (11), West Virginia
(12), Virginia (16) and North Carolina (18). That
stands in stark contrast to 1995—pre-McLean—
where only one state in the Fourth Circuit was in the
top twenty: Virginia (6), West Virginia (25), South
Carolina (26), Maryland (31), and North Carolina
(34).
* * * * *
The upshot is that although the PLRA
accomplished a laudable decrease in suits by
prisoners, meritless suits continue to impose
substantial burdens on the States and courts, and
there has been a recent upturn in that burden. The
PLRA's three-strike rule is an important tool in
combatting this surge and reducing these burdens.
And the rate of suits is disproportionately high in
the Fourth Circuit—precisely where Petitioner's
proposed rule is in effect.
II. DISMISSALS WITHOUT PREJUDICE
ARE PROPERLY REGARDED AS
STRIKES UNDER THE PLRA
As demonstrated above, despite the PLRA's
three-strike provision and other reforms, the tide of
frivolous prisoner litigation remains a significant
problem that still commands a disproportionate
share of the dockets of federal courts. Fortunately,
this Court need simply read the PLRA three-strike
provision as it is written to help address this burden.
Doing so is not only consistent with the statutory
text, but also its purposes, context, and history.
-18
A. The PLRA's Plain Language
Supports Respondents
This Court has long held that "[s]tatutory
construction must begin with the language employed
by Congress," Milner v. Dep't of Navy, 562 U.S. 562,
569 (2011), and "absent provisions cannot be
supplied by the courts." Rotkiske v. Klemm, 140 S.
Ct. 355, 360-61 (2019) (cleaned up). Because the
PLRA's three-strike provision only asks whether a
dismissal was on the basis that the complaint was
"frivolous, malicious, or fail[ed] to state a claim upon
which relief may be granted," 28 U.S.0 § 1915(g)—
and not whether it was with or without prejudice—
the Tenth Circuit's decision is correct and should be
affirmed.
When adding the three-strike provision to the in
forma pauperis statute, Congress was silent as to
whether dismissal with prejudice was a requirement
for being considered a strike under section 1915(g).
The words "with prejudice" or "without prejudice"
simply cannot be found there. Those omissions
should be given effect. See, e.g., Christensen v.
Harris Cty., 529 U.S. 576, 583 (2000) ("When a
statute limits a thing to be done in a particular
mode, it includes a negative of any other mode."'
(citation omitted) (cleaned up)).
More generally, this Court has explained that it
does not "lightly assume that Congress has omitted
from its adopted text requirements that it
nonetheless intends to apply." Jama v. ICE, 543
U.S. 335, 341 (2005). But that is precisely what
Petitioner is contending: that although the PLRA
omits discussion of even the concept of dismissal
with-versus-without prejudice entirely, Congress
19
nonetheless intended to mandate that only
dismissals with prejudice count as strikes.
This Court's decision in Coleman further
supports the Tenth Circuit's reasoning. There, this
Court focused on the statutory text of § 1915(g) and
held that a district court decision counts as a strike
even when it is being appealed. In reaching this
conclusion, this Court relied upon the plain language
of the statute and found that it simply describes a
strike as an action that "was dismissed." Noting
that "[t]hat, after all, is what the statute literally
says," with no mention of any requirement that the
dismissal have been affirmed on appeal, this Court
refused to engraft such an atextual requirement onto
the PLRA's three-strike rule. Coleman, 135 S. Ct. at
1763.
This case similarly requires nothing more than
implementing "what the statute literally says." Id.
Indeed, Petitioner never explains how a district
court has any power to dismiss a claim under Rule
12(b)(6) in a manner that would not also count as a
strike. Rule 12(b)(6) only permits dismissal where a
complaint "fail[s] to state a claim upon which relief
can be granted," much as the PLRA counts as a
strike dismissal for "fail[ure] to state a claim upon
which relief may be granted." 28 U.S.C. § 1915(g).
The standard for dismissal under Rule 12(b)(6) thus
cannot be satisfied until section 1915(g) is also
triggered.
Petitioner argues (at 20) that "if a court
`dismissed' an action for 'failure to state a claim,'
that dismissal is [necessarily] with prejudice." But a
complaint either states a claim or it does not. If it
does actually state a claim, a district court has no
business dismissing it under Rule 12(b)(6) at all,
20
either with or without prejudice. And if a complaint
"fails to state a claim upon which relief may be
granted," 28 U.S.C. § 1915(g)—and thus is
dismissable under Rule 12(b)(6)—it literally and
necessarily satisfies section 1915(g) to a "T."
Satisfying the standard for Rule 12(b)(6) thus
necessarily satisfies the requirements of 28 U.S.C.
§ 1915(g).
Petitioner also stresses (at 10) that dismissals
without prejudice often result from "procedural
defects that may be temporary or curable." But
curability is also a concept utterly unmentioned in
section 1915(g), which is only concerned with
whether the dismissal was on the basis of "failure to
state a claim"—not whether the grounds for
dismissal might be curable.
The Tenth Circuit is hardly alone in reaching this
conclusion. Multiple other circuits have similarly
refused to read into the three-strike provision an
atextual requirement that a dismissal must be with
prejudice to count as a strike. See, e.g., Orr v.
Clements, 688 F.3d 463, 465 (8th Cir. 2012) ("[W]e
see no reason why a dismissal without prejudice
should not count as a strike under § 1915(g). The
text of § 1915(g) draws no distinction between
dismissals with prejudice and dismissals without
prejudice...Either way, an action has been dismissed
on one of the grounds specified in § 1915(g)")
(internal citations and quotation marks omitted.);
Paul v. Marberry, 658 F.3d 702, 704 (7th Cir. 2011)
("A dismissal is a dismissal, and provided that it is
on one of the grounds specified in section 1915(g) it
counts as a strike."); O'Neal v. Price, 531 F.3d 1146,
1154-1155 (9th Cir. 2008) ("[A] dismissal without
prejudice may count as a strike ... We decline to
21
read into the statute an additional requirement not
enacted by Congress").
All of these courts have reached the correct
result, which is the one that the plain text of the
PLRA fairly demands. Nor does this result unduly
bar access to federal courts. It only means that the
prisoner who has acquired three strikes (and does
not allege imminent physical injury) may not
proceed in forma pauperis and is required to pay the
initial court costs and filing fees in order to bring a
new action. In essence, the prisoner is only required
to take into account the factors that every nonindigent litigant must consider, thus ameliorating
the problem that prisoners 'lack I] an economic
incentive to refrain from filing frivolous, malicious,
or repetitive lawsuits."' Coleman, 135 S. Ct. at 1762
(citation omitted) (cleaned up).
B.
The Tenth Circuit's Interpretation
Is Consistent With The Purposes Of
The PLRA And Its Context And
History
Construing a dismissal for failure to state a claim
as a strike, regardless of whether it is with or
without prejudice, is also consistent with Congress'
intent that the PLRA reduce meritless prisoner
litigation, as well as the statute's context and
history.
The three-strike provision was a direct response
to the filing of multiple actions by prisoners who see
the filing of litigation more as a sport than a
legitimate avenue for correcting alleged
constitutional violations. Interpreting the threestrike provision in a clear, bright-line fashion
22
comports with the overall design and purposes of the
PLRA.
A comparison of this Court's holding in Neitzke v.
Williams, 490 U.S. 319 (1989), decided pre-PLRA,
and the subsequent amendments in the PLRA,
demonstrates Congress's intent to broaden the class
of cases that should be dismissed and designated as
strikes. Prior to the passage of the PLRA, indigent
prisoners sought refuge in the in forma pauperis
statute under then § 1915(d) to file the great bulk of
claims. Under this iteration of the statute, a case
could be dismissed if a court found that the
prisoner's allegation of poverty was untrue or the
action was frivolous or malicious. There was no
provision for dismissal based on the prisoner's
failure to state a claim. In Neitzke, this Court was
asked to find that a complaint dismissed for failure
to state a claim was necessarily frivolous under
§ 1915(d). A unanimous Court held that the two
standards were distinct, and that failure to state a
claim was not the same as frivolousness. In so
holding, this Court explained that "Rio conflate the
standards of frivolousness and failure to state a
claim ... would thus deny indigent plaintiffs the
practical protections against unwarranted dismissal
generally accorded paying plaintiffs." Neitzke, 490
U.S. at 330. Recognizing the implications that
merging a Rule 12(b)(6) defect with frivolousness
would have on indigent litigants, this Court declined
to accept such an interpretation.
Following the Neitzke decision, and fully aware of
it, Congress in the PLRA specifically added language
to the in forma pauperis statute that tracked Rule
12(b)(6), thus expressly directing district courts to
dismiss cases for failure to state a claim and thereby
23
significantly increasing the number of in forma
pauperis prisoner cases subject to dismissal.
This Court recognized in Booth v. Churner, 532
U.S. 731 (2001), that Congress took notice of its prior
decisions regarding prisoner actions and drafted the
PLRA as a direct response. At issue in Booth was
whether the exhaustion provision of 42 U.S.C.
§ 1997e(a), as amended by the PLRA, was to be
applied to prisoners even when they only sought
monetary damages not generally provided for in
most administrative schemes adopted by state prison
systems. Looking to language of the PLRA's
predecessor, this Court found lb] efore § 1997e(a)
was amended by the Act of 1995, a court had
discretion (though no obligation) to require a state
inmate to exhaust such ... remedies as are available,
but only if those remedies were plain, speedy, and
effective." Id. at 739 (citation omitted). Then, after
reviewing the statutes after the PLRA amendments,
this Court stated "[t]hat scheme, however, is now a
thing of the past, for the amendments eliminated
both the discretion to dispense with administrative
exhaustion and the condition that the remedy be
plain, speedy, and effective before exhaustion could
be required." Id. (internal quotation marks omitted).
This Court understood that Congress had read its
prior decisions and drafted the PLRA specifically to
eliminate issues it saw with the administration of
prisoner litigation. See id. at 737 ("Congress ... may
well have thought we were shortsighted.")
Since Booth, every time this Court has been
asked to limit the PLRA to a minimal and specific
set of circumstances, or otherwise create special
exceptions in derogation of the statute's clear and
plain meaning, it has properly declined to do so. See
24
Porter, 534 U.S. 516 (holding the exhaustion
requirement in 1997e(a) applied to claims of single
acts of excessive force); Woodford, 548 U.S. 81
(holding full and proper exhaustion of administrative
remedies required under statute); Coleman, 135 S.
Ct. 1759 (holding dismissal of a prior action counts
as strike even if currently subject to appeal); Ross v.
Blake, 136 S. Ct 1850 (2016) (holding special
circumstances not an excuse for failure to exhaust
administrative remedies); Bruce v. Samuels, 136 S.
Ct. 627 (2016) (holding fees to be collected
simultaneously under in forma pauperis statute
when prisoners have multiple actions).
Construing a dismissal for failure to state a claim
as a strike for purposes of the three-strike provision,
regardless of whether it is with or without prejudice,
thus creates a clear rule that is consistent with this
precedent and with Congress' intent that the PLRA
be construed broadly to reduce the massive volume
of meritless prisoner litigation in the federal courts.
25
CONCLUSION
For the foregoing reasons, this Court should hold
that dismissals for failure to state a claim count as
"strikes" under the PLRA whether they are with or
without prejudice, and the judgment of the Tenth
Circuit should therefore be affirmed.
Respectfully submitted,
WILLIAM TONG
Connecticut Attorney
General
CLARE E. KINDALL
Solicitor General
Counsel of Record
JAMES DONOHUE
Assistant Attorney General
165 Capitol Avenue
Hartford, CT 06106
Clare.Kindall@ct.gov
(860) 808-5261
Counsel for Connecticut
MARK BRNOVICH
Arizona Attorney General
ORAMEL H. (0.H.) SKINNER
Solicitor General
DREW C. ENSIGN
Deputy Solicitor General
Counsel of Record
ROBERT J. MAKAR
Assistant Attorney General
2005 North Central Avenue
Phoenix, AZ 85004
Drew.Ensign@azag.gov
(602) 542-5025
Counsel for Arizona
26
Also Supported By:
STEVE MARSHALL
DEREK SCHMIDT
Alabama Attorney General
Kansas Attorney General
KEVIN G. CLARKSON
DANIEL CAMERON
Alaska Attorney General
Kentucky Attorney General
LESLIE RUTLEDGE
Arkansas Attorney General
JEFF LANDRY
Louisiana Attorney General
ASHLEY MOODY
AARON M. FREY
Florida Attorney General
Maine Attorney General
CHRISTOPHER M. CARR
DANA NESSEL
Georgia Attorney General
Michigan Attorney General
CLARE E. CONNORS
ERIC S. SCHMITT
Hawaii Attorney General
Missouri Attorney General
LAWRENCE G. WASDEN
TIMOTHY C. Fox
Idaho Attorney General
Montana Attorney General
KWAME RAOUL
DOUGLAS J. PETERSON
Illinois Attorney General
Nebraska Attorney General
CURTIS T. HILL, JR.
WAYNE STENEHJEM
Indiana Attorney General
North Dakota Attorney
General
THOMAS J. MILLER
DAVE YOST
Iowa Attorney General
Ohio Attorney General
27
MIKE HUNTER
JASON RAVNSBORG
Oklahoma Attorney General
South Dakota Attorney
General
ELLEN F. ROSENBLUM
HERBERT H. SLATERY III
Oregon Attorney General
Tennessee Attorney General
JOSH SHAPIRO
KEN PAXTON
Pennsylvania Attorney
General
Texas Attorney General
PETER F. NERONHA
SEAN D. REYES
Rhode Island Attorney
General
Utah Attorney General
ALAN WILSON
ROBERT W. FERGUSON
South Carolina Attorney
General
Washington Attorney
General
January 22, 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.