Reply Brief — Arthur J. Lomax, Petitioner v. Christina Ortiz-Marquez, et al.

No. 18-8369

IN THE

Supreme Court of the United States

ARTHUR JAMES LOMAX,

v.

Petitioner,

CHRISTINA ORTIZ-MARQUEZ, NATASHA KINDRED,

DANNY DENNIS, MARY QUINTANA,

Respondents.

On Writ of Certiorari

To The United States Court of Appeals

For The Tenth Circuit

REPLY BRIEF FOR PETITIONER

ERIC D. LAWSON

GOODWIN PROCTER LLP

620 8th Ave.

New York, NY 10018

BRIAN T. BURGESS

Counsel of Record

STEPHEN R. SHAW

GOODWIN PROCTER LLP

1900 N St., N.W.

Washington, DC 20036

bburgess@goodwinlaw.com

(202) 346-4000

Counsel for Petitioner

(Additional counsel listed on inside cover)

February 14, 2020

CHRISTOPHER J.C. HERBERT

GOODWIN PROCTER LLP

100 Northern Ave.

Boston, MA 02210

DANIEL R. MELLO, JR.

GOODWIN PROCTER LLP

601 Marshall St.

Redwood City, CA 94063

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................... i

TABLE OF AUTHORITIES ..................................ii

INTRODUCTION .................................................. 1

ARGUMENT .......................................................... 3

I.

A Dismissal For “Failure To State A Claim”

Entered Without Prejudice Is Not A Strike

Under Section 1915(g). ................................ 3

A. “Dismissed On The Ground[] That It

. . . Fails To State A Claim Upon Which

Relief May Be Granted” Is A Legal

Term Of Art That Refers To WithPrejudice Dismissals……………………..4

B. The PLRA’s Structure Confirms That

Without-Prejudice Dismissals For

“Failure To State A Claim” Do Not

Count As Strikes………………………….9

II.

Respondents’ Interpretation Does Not

Further The PLRA’s Objectives. .............. .17

A. Respondents’ Approach Punishes

Litigants Who Have Meritorious Claims

That Merely Suffer From Technical,

Curable Defects………………………….17

B. Petitioner’s Interpretation Provides

Courts With Ample Tools To Deter

Vexatious Prisoner Suits………………22

CONCLUSION ..................................................... 24

i

TABLE OF AUTHORITIES

Page(s)

CASES:

Ackerman v. Mercy Behavior Health,

617 F. App’x 114 (3d Cir. 2015) ........................... 11

Air Wis. Airlines Corp. v. Hoeper,

571 U.S. 237 (2014) ............................................ 4, 7

Christiansen v. Clarke,

147 F.3d 655 (8th Cir. 1998) ................................ 20

Clark v. Martinez,

543 U.S. 371 (2005) .............................................. 21

Cohen v. Corr. Corp. of Am.,

439 F. App’x 489 (6th Cir. 2011).......................... 11

Coleman v. Tollefson,

135 S. Ct. 1759 (2015) .................................... 7, 8, 9

Daker v. Comm’r, Ga. Dep’t of Corr.,

820 F.3d 1278 (11th Cir. 2016) .................. 6, 12, 15

Daker v. Jackson,

942 F.3d 1252 (11th Cir. 2019) ............................ 21

Denton v. Hernandez,

504 U.S. 25 (1992) .......................................... 12, 22

Durant v. Essex Co.,

74 U.S. (7 Wall.) 107 (1869) ............................... 2, 6

ii

El-Shaddai v. Zamora,

833 F.3d 1036 (9th Cir. 2016) .............................. 17

F.A.A. v. Cooper,

566 U.S. 284 (2012) ................................................ 5

Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394 (1981) ................................................ 6

Foote v. Gibbs,

67 Mass. (1 Gray) 412 (Mass. 1854) ...................... 6

Heck v. Humphrey,

512 U.S. 477 (1994) .............................. 3, 18, 22, 23

Holmberg v. Armbrecht,

327 U.S. 392 (1946) ................................................ 3

Jackson v. Fla. Dep’t of Fin. Servs.,

479 F. App’x 289 (11th Cir. 2012)........................ 12

Jones v. Bock,

549 U.S. 199 (2007) .......................................... 8, 20

Kennedy v. Getz,

757 F. App’x 205 (3d Cir. 2018) ..................... 11, 12

Ladeairous v. Sessions,

884 F.3d 1172 (D.C. Cir. 2018) ............................ 21

Lagos v. United States,

138 S. Ct. 1684 (2018) .......................................... 12

Luevano v. Wal-Mart Stores, Inc.,

722 F.3d 1014 (7th Cir. 2013) .............................. 20

iii

Malek v. Reding,

195 F. App’x 714 (10th Cir. 2006)........................ 17

McLean v. United States,

566 F.3d 391 (4th Cir. 2009) ........................ 5, 8, 16

Meja v. Harrington,

541 F. App’x 709 (7th Cir. 2013).......................... 23

Millhouse v. Heath,

866 F.3d 152 (3d Cir. 2017) ................................... 7

Neitzke v. Williams,

490 U.S. 319 (1989) ........................................ 10, 14

Okoro v. Bohman,

164 F.3d 1059 (7th Cir. 1999) .............................. 10

Owens v. Isaac,

487 F.3d 561 (8th Cir. 2007) ................................ 17

Pittman v. Moore,

980 F.2d 994 (5th Cir. 1993) ................................ 12

Return Mail, Inc. v. U.S. Postal Serv.,

139 S. Ct. 1853 (2019) .......................................... 15

Ricks v. Mackey,

141 F.3d 1185 (10th Cir. 1998) ............................ 20

Schmidt v. Navarro,

576 F. App’x 897 (11th Cir. 2014)........................ 12

Sekhar v. United States,

570 U.S. 729 (2013) ................................................ 4

iv

Semtek Int’l Inc. v. Lockheed Martin

Corp.,

531 U.S. 497 (2001) ................................................ 1

Snider v. Melindez,

199 F.3d 108 (2d Cir. 1999) ........................... 10, 17

Tafari v. Hues,

473 F.3d 440 (2d Cir. 2007) ................................... 2

Turley v. Gaetz,

625 F.3d 1005 (7th Cir. 2010) .............................. 18

Woodford v. Ngo,

548 U.S. 81 (2006) ............................................ 8, 19

Yates v. United States,

135 S. Ct. 1074 (2015) .......................................... 15

STATUTES:

28 U.S.C. § 1915(e)(2) ................................................ 13

28 U.S.C. § 1915(e)(2)(B) ........................................... 14

28 U.S.C. §1915A(b) .................................................. 13

28 U.S.C. §1915A(b)(1) .............................................. 14

28 U.S.C. § 1915(g) .............................................passim

42 U.S.C. § 262(k)(6)(B)(ii) ........................................ 16

42 U.S.C. § 1997e(c) .................................................. 13

42 U.S.C. § 1997e(c)(1) .............................................. 14

v

FEDERAL RULES:

Federal Rule of Civil Proceudre 12(b)(6) ...........passim

Federal Rule of Civil Procedure 15(a) ...................... 20

Federal Rule of Civil Procedure 41(b) .................... 5, 6

OTHER AUTHORITIES:

9 Charles Alan Wright & Arthur R.

Miller, Federal Practice and

Procedure § 2373, Westlaw (database

updated Aug. 2019) ............................................. 7-8

The Ctr. for Constitutional Rights &

The Nat’l Lawyers Guild, The

Jailhouse Lawyer’s Handbook: How

to Bring a Federal Lawsuit to

Challenge Violations of Your Rights

in Prison (Rachel Meeropol & Ian

Head, eds., 5th ed. 2010) ..................................... 13

Margo Schlanger, Trends in Prison

Litgiation, as the PLRA Appraches

20, 28 Corr. Law Reporter 69 (2017) ................... 23

vi

INTRODUCTION

On one key point, the parties and all amicus curiae seem to agree: the Prison Litigation Reform Act of

1995 (PLRA) is designed to “reduce meritless prisoner lawsuits” without blocking indigent prisoners from

pursuing legitimate claims. Resp. Br. 4 (emphasis

added); accord U.S. Br. 11, 20, 25; Arizona Br. 2, 21;

Council of State Governments Br. 4. The Act’s threestrikes provision, 28 U.S.C. § 1915(g), is no different:

as respondents explain, that provision operates to

“curtail[] prisoners’ ability to file new IFP lawsuits

once they have filed three that are non-meritorious

on their face.” Resp. Br. 4 (emphasis added). But

this (correct) account of section 1915(g)’s scope supports petitioner. By definition, a without-prejudice

dismissal for “fail[ure] to state a claim upon which

relief may be granted,” 28 U.S.C. § 1915(g), does not

represent a judgment that the plaintiff’s claims were

“non-meritorious.” Resp. Br. 4. To the contrary,

such an order “is the opposite of” an “adjudication on

the merits.” Semtek Int’l Inc. v. Lockheed Martin

Corp., 531 U.S. 497, 505 (2001). It should not qualify

as a strike under section 1915(g).

Resisting that conclusion, respondents and their

amici insist that the statutory text compels treating

such without-prejudice dismissal orders as strikes.

But their arguments fail to account for the background rule that a dismissal for failure to state a

claim is an adjudication on the merits and operates

with prejudice, absent an express qualification. Pet.

Br. 15-20. Thus, respondents’ observation (at 12-13)

that the ordinary meaning of “dismiss” includes both

with- and without-prejudice dismissals misses the

2

point, as does their reliance on other statutory provisions that authorize courts to “dismiss” actions.

Provisions that authorize dismissal, like Rule

12(b)(6), allow courts to qualify their orders by entering the dismissal with or without prejudice. But section 1915(g) is different: it imposes a consequence

based on a previously-entered order. In that context,

in which a court must determine whether an order

limits the plaintiff’s ability to pursue a new action—

because of preclusion or a restriction on IFP eligibility—the background rule should guide interpretation. Congress would have expected courts to adopt

the same conclusive presumption when interpreting

the statutory phrase at issue: because section

1915(g) does not use any “words of qualification”

when referring to dismissals for failure to state a

claim, it is best read to refer only to such dismissals

that were “rendered on the merits.” Durant v. Essex

Co., 74 U.S. (7 Wall.) 107, 109 (1869).

The statutory context confirms that interpretation. Section 1915(g) imposes strikes for only a subset of the dismissal orders that other PLRA provisions authorize. Read as a whole, section 1915(g)

targets actions that abuse the judicial process because—to borrow respondents’ formulation—they are

“non-meritorious on their face.” Resp. Br. 4. By contrast, Congress carefully excluded categories of dismissals that “ha[ve] nothing to do with the merits”

from section 1915(g)’s reach, Tafari v. Hues, 473 F.3d

440, 442 (2d Cir. 2007), such as dismissals for lack of

jurisdiction or failure to prosecute, Pet. Br. 25-26.

Without-prejudice dismissals for failure to state a

claim belong in the latter camp.

3

Respondents and their amici warn that adopting

petitioner’s interpretation would reopen the

floodgates for vexatious prisoner suits by allowing

prisoners to file “limitless” claims that suffer from

procedural flaws, such as premature filing under

Heck v. Humphrey, 512 U.S. 477 (1994). See U.S. Br.

29; Council of State Governments Br. 22-24. That is

manifestly wrong. Under petitioner’s interpretation,

courts retain ample tools to deter repetitive or

otherwise abusive suits, including by dismissing

them as “frivolous” or “malicious.” On the flip side,

respondents’ expansive interpretation of section

1915(g) imposes real costs by restricting indigent

prisoners’ access to federal courts based on

potentially curable procedural errors.

The Court should reverse the decision below and

hold that petitioner did not accrue strikes under

section 1915(g) for actions dismissed without

prejudice for failure to state a claim.

ARGUMENT

I.

A Dismissal For “Failure To State A

Claim” Entered Without Prejudice Is Not

A Strike Under Section 1915(g).

Respondents and their amici contend that section

1915(g) requires courts to impose strikes whenever

an action is dismissed for failure to state a claim,

even if the dismissal issues without prejudice—as

occurs when, for example, a suit “fail[s] on procedural grounds” that do not preclude a “further action.”

Holmberg v. Armbrecht, 327 U.S. 392, 393 (1946).

But their argument is flawed because it interprets

the key phrase at issue—“dismissed on the ground[]

that . . . [the action] fails to state a claim upon which

4

relief may be granted,” 28 U.S.C. § 1915(g)—without

proper regard for historical or statutory context.

A.

“Dismissed On The Ground[] That It

. . . Fails To State A Claim Upon Which

Relief May Be Granted” Is A Legal

Term Of Art That Refers To WithPrejudice Dismissals.

The parties agree that, to interpret section 1915(g),

the Court should look to the “settled meaning” of

Rule 12(b)(6), which uses “essentially the same language” as the statute. Resp. Br. 15; accord Pet. Br.

15-20; U.S. Br. 15-16. But respondents and their

amici fail to follow this observation to its logical endpoint. When an action is dismissed for failure to

state a claim, the dismissal always operates with

prejudice unless the order is expressly qualified. See

Pet. Br. 15-17. By using this phrase in section

1915(g) without qualification, Congress should be

understood to have imposed strikes only for withoutprejudice dismissals for failure to state a claim. See

Air Wis. Airlines Corp. v. Hoeper, 571 U.S. 237, 246247 (2014) (“[W]e presume that Congress meant to

incorporate the settled meaning of [a term of art]

when it incorporated the language of that [term.]”);

Sekhar v. United States, 570 U.S. 729, 733 (2013)

(recognizing that when terms are “obviously transplanted from another legal source,” they “bring[] the

old soil” with them into the new statute). The Court

should reject the efforts by respondents and their

amici to divorce section 1915(g)’s meaning from this

rule of civil practice.

1. Respondents first invoke (at 12-14) what they

describe as the “plain meaning” of the word

5

“[d]ismissed.” Respondents point out that standard

dictionary definitions include both “with” and “without” prejudice dismissals. Of course they do. Petitioner acknowledged that courts may dismiss actions

under Rule 12(b)(6) without prejudice. Pet. Br. 16.

Rather, petitioner’s argument is that “[w]hen the

word ‘dismissed’ is coupled with the words ‘for failure

to state a claim upon which relief may be granted,’

the complete phrase has a well-established legal

meaning” that presupposes a with-prejudice dismissal. McLean v. United States, 566 F.3d 391, 396 (4th

Cir. 2009) (emphasis added; alterations omitted). It

is no answer for respondent to pluck a single word

from section 1915(g) and use its out-of-context definition to modify the meaning of a broader legal phrase.

See F.A.A. v. Cooper, 566 U.S. 284, 291-292 (2012)

(rejecting attempt to “rely on the ordinary meaning

of the word ‘actual’ as it is defined in standard general-purpose dictionaries” because the phrase in the

statute, “actual damages,” is a “legal term of art”).

2. Leaving behind dictionary definitions, respondents next assert that the analogy petitioner

draws to Rule 12(b)(6) supports their position. Resp.

Br. 15-17; see also U.S. Br. 17-18. Respondents

acknowledge (at 16) that, under Federal Rule of Civil

Procedure 41(b), a Rule 12(b)(6) dismissal presumptively operates with prejudice. But respondents contend that the need for the Rules of Civil Procedure to

adopt a default presumption shows that such dismissals may operate with or without prejudice. Id.; accord U.S. Br. 18. Respondents and their amici once

again fail to give sufficient weight to the legal background against which Congress legislated.

6

Rule 41(b) did not create a new default rule. Rather, it “codifies a longstanding rule of equity that

[w]here words of qualification, such as without prejudice, . . . do not accompany [a judicial] decree, [the

decree] is presumed to be rendered on the merits.”

U.S. Br. 17 (quotation marks omitted) (quoting Durant, 74 U.S. at 109). And this presumption has long

been regarded as irrebuttable. See Foote v. Gibbs, 67

Mass. (1 Gray) 412, 413 (Mass. 1854) (Shaw, C.J.)

(“[T]he authorities, both in England and in this country, are decisive, that a general entry of ‘bill dismissed,’ with no words of qualification, such as ‘dismissed without prejudice,” or ‘without prejudice to

an action at law,’ or the like, is conclusively presumed to be upon the merits[.]”).

Thus, the parties agree that courts may qualify

dismissals for failure to state a claim by stipulating

that the dismissal operates “without prejudice.” But

the inference that respondents draw from this uncontroversial proposition does not follow. Section

1915(g) does not authorize district courts to dismiss

actions that fail to state a claim. Rather, it operates

in the past tense, imposing a consequence on already-entered dismissals. See Daker v. Comm’r, Ga.

Dep’t of Corr., 820 F.3d 1278, 1284 (11th Cir. 2016).

In that context, the phrase “dismissed on the

ground[] . . . that [an action] fails to state a claim upon which relief may be granted” has an unambiguous

meaning: it refers to a dismissal order that rejects an

action on the merits, precluding future suits based

on the same transaction and occurrence. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3

(1981). By using that same phrase in that same context, Congress presumptively intended to adopt the

7

same meaning. Air Wis. Airlines, 571 U.S. at 246247.

3. The flaws in respondents’ “plain language” argument also infect their attempt to marshal this

Court’s case law to support their position. Respondents cite Coleman v. Tollefson, 135 S. Ct. 1759

(2015), in which the Court held that a previous dismissal on a ground enumerated in section 1915(g)

would count as a strike, even if that dismissal was

still pending on appeal, id. at 1761. In reaching that

conclusion, the Court noted that the prisoner’s contrary interpretation would read the statute as

though it imposed strikes only for “affirmed dismissal[s]”—which is not what section 1915(g) says. Id.

at 1763. Drawing on Coleman’s reasoning, respondents urge the Court not to “read into the statute a

limitation of just dismissals with prejudice.” Resp.

Br. 14; accord U.S. Br. 13-14.

But petitioner’s interpretation “does not read an

additional requirement into the statute that was not

already implied by Congress’ use of the familiar

phrase ‘dismissed . . . for failure to state a claim.’”

Millhouse v. Heath, 866 F.3d 152, 162-163 (3d Cir.

2017) (quotation marks, citation, and brackets omitted). The flaw in respondents’ reasoning is illustrated by a simple example. If, hypothetically, section

1915(g) applied only to “dismissals for lack of subject-matter jurisdiction,” no one would doubt that the

statute would cover only dismissals entered without

prejudice. That conclusion would not “read extratextual limitations into the statute.” U.S. Br. 14.

Rather, it would reflect the understanding that a

dismissal for lack of subject-matter jurisdiction necessarily operates without prejudice. See 9 Charles

8

Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 2373, Westlaw (database updated

Aug. 2019).

Respondents no doubt would respond that a Rule

12(b)(6) dismissal is not so limited—a court may

dismiss for failure to state a claim with or without

prejudice. This ambiguity disappears, however, once

an order is entered, since the law conclusively presumes that “[a]n unqualified dismissal for failure to

state a claim . . . operate[s] with prejudice.” McLean,

566 F.3d at 398. “[T]he addition of the words ‘with

prejudice’ to modify such a dismissal is simply not

necessary.” Id. at 398-399.

For this reason, respondents’ reliance on Coleman

is misplaced. In fact, Coleman’s reasoning supports

petitioner’s reading of section 1915(g). In Coleman,

the Court based its interpretation in part on “the

way in which the law ordinarily treats trial court

judgments,” reasoning that because “a trial court’s

judgment . . . normally takes effect despite a pending

appeal,” there was no reason to let an appeal suspend a strike’s imposition. 135 S. Ct. at 1764. Other

decisions from this Court interpreting the PLRA

have likewise read the statute’s provisions to align

with background legal principles, rejecting “plain

language” arguments that disregard legal context.

See Jones v. Bock, 549 U.S. 199, 212 (2007) (aligning

the PLRA’s approach to exhaustion and pleading

with “the usual practice under the Federal Rules”);

Woodford v. Ngo, 548 U.S. 81, 88-90 (2006) (treating

“exhausted” as a “term of art” that derived its meaning from administrative law, and rejecting the dissent’s argument that the PLRA’s plain text supported a different result). Likewise, section 1915(g)

9

should be read in harmony with “[t]he ordinary rules

of civil procedure,” Coleman, 135 S. Ct. at 1764,

which dictate that an action “dismissed” “for failure

to state a claim” refers to a dismissal with prejudice.

B.

The PLRA’s Structure Confirms That

Without-Prejudice Dismissals For

“Failure To State A Claim” Do Not

Count As Strikes.

Petitioner’s interpretation of section 1915(g) is

further supported by the broader statutory context,

which makes clear that Congress imposed strikes on

actions that are non-meritorious or otherwise abusive—descriptions that exclude without-prejudice

dismissals for failure to state a claim. Pet. Br. 20-26.

Respondents’ contention (at 17-24) that statutory

structure favors their position is mistaken and ultimately contradicts respondents’ recognition that section 1915(g) is triggered only when a prisoner has

filed three lawsuits that were dismissed as “nonmeritorious on their face.” Resp. Br. 4.

1. Section 1915(g) imposes a strike if an action or

appeal was dismissed on the ground that it was

(1) “frivolous,” (2) “malicious,” or (3) “fail[ed] to state

a claim upon which relief may be granted.” Respondents agree (at 18) that the meaning of the

terms “frivolous” and “malicious” should inform the

meaning of “fails to state a claim.” And they

acknowledge that “frivolous” and “malicious” dismissals share a common characteristic with dismissals

for “failure to state a claim” entered with prejudice:

they all connote an action that is irredeemable or

abusive of the judicial process. Resp. Br. 18 (noting

that “frivolous claims” are “clearly baseless”), 19-20

10

(explaining that “malicious” lawsuits are typically

duplicative or otherwise abusive). Respondents and

their amici nevertheless argue that the presence of

those two terms in section 1915(g) supports their interpretation because “frivolous” or “malicious” dismissals may be rendered without prejudice. Resp.

Br. 21; U.S. Br. 19. But this argument does not

bridge the gap between those two terms and respondents’ interpretation of section 1915(g) to include without-prejudice dismissals for what may be

“a temporary, curable, procedural flaw.” Snider v.

Melindez, 199 F.3d 108, 111 (2d Cir. 1999).

The dismissal of an action as “frivolous” or “malicious” represents a clear judgment that the plaintiff’s

action is irredeemable or otherwise abusive of the

judicial process. Pet. Br. 21-22. The decisions respondents and their amici cite illustrate petitioner’s

point. 1

A “frivolous” action “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S.

319, 325 (1989). “In the usual case,” dismissing an

action as frivolous represents a judgment that “its

want of merit is . . . patent.” Okoro v. Bohman, 164

F.3d 1059, 1063-1064 (7th Cir. 1999). But a court

may also dismiss an action as frivolous in contexts

where it cannot adjudicate the merits, such as if the

court lacks jurisdiction. Resp. Br. 19. In that circumstance, a frivolousness determination sanctions

the plaintiff for burdening the court with wholly

1 Neither respondents nor their amici suggest that there is any

background rule that presumes frivolous or malicious dismissals operate with prejudice.

11

groundless jurisdictional arguments. Thus, dismissing the action as frivolous conveys a judgment that

the action was abusive or vexatious over and above

the fact that it was filed prematurely or in the wrong

forum. As a case respondents cite (at 19) explains,

“[w]hile in the ordinary case, a dismissal for a lack of

jurisdiction is not a strike, . . . a prisoner’s invocation

of federal jurisdiction in and of itself may be frivolous

where there is no possible ground upon which a reasoned argument can be made to sustain [] jurisdiction.” Cohen v. Corr. Corp. of Am., 439 F. App’x 489,

491-492 (6th Cir. 2011) (quotation marks omitted);

see also Ackerman v. Mercy Behavior Health, 617 F.

App’x 114, 116-117 (3d Cir. 2015) (per curiam) (cited

in U.S. Br. 15) (affirming dismissal of action as frivolous but without prejudice where the complaint invoked federal-question jurisdiction but presented

“disjointed” and “difficult to decipher” allegations

that were “clearly baseless”).

The same reasoning applies to “malicious” dismissals. To dismiss an action as malicious, the court

must conclude that it was brought to “vex, injure, or

harass the defendants” and serves “no legitimate

purpose.” Kennedy v. Getz, 757 F. App’x 205, 207208 (3d Cir. 2018) (cited in Resp. Br. 19). That is

true regardless of whether the dismissal is entered

without prejudice. Respondents’ case-law examples

confirm this point. In one case, the court concluded

that filing a second, duplicative lawsuit was malicious; the court dismissed without prejudice merely

to avoid impacting the still-pending first suit. See

12

Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993). 2

In other cases, courts dismissed actions as malicious

based on clear misuse of the IFP process, ending the

case without any need to consider the merits. See,

e.g., Schmidt v. Navarro, 576 F. App’x 897, 898-899

(11th Cir. 2014) (per curiam); Jackson v. Fla. Dep’t of

Fin. Servs., 479 F. App’x 289, 292 (11th Cir. 2012).

Without-prejudice dismissals for failure to state a

claim do not fit with these other dismissal categories.

Such dismissals may be premised on technical, curable errors, they do not express a view on the merits

of the claims, and they do not suggest that the plaintiff has abused the courts with her filing. 3

2. The proper interpretation of section 1915(g) is

informed not only by the categories of dismissals that

are included, but also by those that Congress left out.

See Lagos v. United States, 138 S. Ct. 1684, 16891690 (2018). As previously explained, the structure

of the PLRA shows that Congress excluded from section 1915(g) dismissals that do not “express any view

on the merits” of the action or reflect a finding of

abuse—e.g., actions dismissed for lack of jurisdiction,

abstention, prematurity, or want of prosecution. See

Pet. Br. 23-26 (quoting Daker, 820 F.3d at 1284).

Most conspicuously, Congress excluded immunity2 Respondents place Kennedy v. Getz in this category, but there

the court dismissed the action with prejudice. 757 F. App’x at

207.

3 Because petitioner does not take issue with a court’s ability to

dismiss an action without prejudice as frivolous, respondents’

discussion of Denton v. Hernandez, 504 U.S. 25 (1992), is beside

the point. Resp. Br. 18-19; U.S. Br. 10, 15, 19.

13

based dismissals from section 1915(g), even though

the three sections of the PLRA that specify bases for

sua sponte dismissals all include actions that “seek[]

monetary relief from a defendant who is immune

from such relief.”

See 28 U.S.C. §§ 1915(e)(2);

1915A(b); 42 U.S.C. § 1997e(c).

Respondents have no explanation for why Congress would have excluded these other non-meritsbased dismissals from section 1915(g) yet imposed

strikes for actions dismissed without prejudice for

failure to state a claim. Indeed, respondents simply

ignore this issue.

The United States offers a cursory response, suggesting that Congress “might have omitted immunity

dismissals from Section 1915(g) for any number of

reasons.” U.S. Br. 21. But its attempted explanations are unconvincing. First, the United States

surmises (id.) that Congress “may have believed immunity defenses are particularly difficult for prisoners to spot.” But the United States offers no support

for that assertion, and it is doubtful that Congress

would have believed that immunity issues are systematically more challenging for prisoners to identify

than other hurdles that prisoners face when pursuing claims in federal court. 4 Second, the United

4 In fact, the source that the United States describes (at 29) as

“one of the leading manuals for prisoners” addresses questions

of sovereign immunity, instructing prisoners that they “cannot

sue a state or a state agency directly.” The Ctr. for Constitutional Rights & The Nat’l Lawyers Guild, The Jailhouse Lawyer’s Handbook: How to Bring a Federal Lawsuit to Challenge

Violations of Your Rights in Prison 72 (Rachel Meeropol & Ian

Head, eds., 5th ed. 2010).

14

States speculates (id.) that Congress “may have been

focused on deterring the types of suits discussed in

Neitzke.” But that argument is nonresponsive, because it does not explain why Congress chose to expand the IFP screening provision (then section

1915(d), now codified as section 1915(e)) to require

dismissal of actions that either failed to state a claim

or sought monetary damages and are barred by immunity, yet opted for a narrower approach in section

1915(g). The best explanation is that section 1915(g)

operates as a sanction, which Congress did not intend to apply to suits dismissed for procedural reasons (absent any finding of frivolousness or malice).

3. Respondents’ competing structural argument

(at 21-24) does not justify their broad interpretation

of section 1915(g). Respondents note that several

other PLRA provisions require courts to screen and

dismiss certain prisoner suits that “fail[] to state a

claim on which relief may be granted.” See 28 U.S.C.

§§ 1915(e)(2)(B); 1915A(b)(1); 42 U.S.C. § 1997e(c)(1).

Assuming that the phrase must have the same

meaning in those screening provisions as in section

1915(g), respondents contend that petitioner’s interpretation would require district courts to dismiss

prisoner actions with prejudice, leaving prisoners

worse off than under respondents’ competing approach. Resp. Br. 23-24; U.S. Br. 21-22; Council of

State Governments Br. 24-25. But respondents’

premise is mistaken: section 1915(g) uses this phrase

in a distinct context that limits its scope to withprejudice dismissals—a limitation that the PLRA’s

screening provisions do not share.

Although “it is often true that when Congress uses a word” or phrase “to mean one thing in one part

15

of the statute, it will mean the same thing elsewhere

in the statute,” “[t]his principle . . . readily yields to

context,” especially when the word or phrase “is used

throughout a statute and takes on distinct characters

in distinct statutory provisions.” Return Mail, Inc. v.

U.S. Postal Serv., 139 S. Ct. 1853, 1863 (2019) (quotation marks omitted); see also Yates v. United

States, 135 S. Ct. 1074, 1082 (2015) (plurality opinion) (“We have several times affirmed that identical

language may convey varying content when used in

different statutes, sometimes even in different provisions of the same statute.”). Here, section 1915(g) is

distinct from the other PLRA provisions that respondents invoke in critical ways.

Most significantly, the PLRA screening provisions

that use the phrase “fail[ure] to state a claim” are

forward-looking and describe a court’s authority to

dismiss an action. The PLRA screening provisions

are thus analogous to Rule 12(b)(6), and they authorize courts to dismiss with or without prejudice. By

contrast, section 1915(g) is backward-looking, as it

asks courts to review a dismissal retrospectively to

determine its effect. See Daker, 820 F.3d at 1284.

As discussed, p. 5-7, supra, this feature of section

1915(g) is significant because it aligns the statute

with the rule of procedure that conclusively presumes a dismissal for failure to state a claim operates with prejudice.

In addition, and as discussed, the screening provisions all authorize dismissals for suits seeking

money damages that are barred by immunity—a

dismissal category that is excluded from section

1915(g). This fact underscores that the PLRA’s

screening provisions are intended to sweep more

16

broadly than section 1915(g), requiring sua sponte

dismissals on grounds that do not implicate the merits or indicate abuse of the courts.

4. Finally, respondents look beyond the PLRA to

other statutes, attributing significance to the fact

that Congress has sometimes expressly differentiated between with- and without-prejudice dismissals.

Resp. Br. 25-28; see also U.S. Br. 13. The negative

inference that respondents draw does not hold up.

Most notably, none of the statutory provisions that

respondents identify use the precise term of art at

issue here—“dismissed on the grounds that it . . .

fails to state a claim upon which relief may be granted.” These other statutes accordingly are of little interpretive value.

Moreover, respondents concede (at 28), that at

least one statute (governing the licensing of biosimilar products) does use as a triggering event “the dismissal with or without prejudice” of a certain action.

42 U.S.C. § 262(k)(6)(B)(ii). On respondents’ account, this phrase is unnecessary surplusage, because the word “dismissal” would always mean with

or without prejudice. Respondents try to explain

away this provision on the ground that it was enacted in 2010, after the McLean decision in 2009. Resp.

Br. 28. But the notion that Congress’s language

choice in a statute governing biologic medicines was

prompted by a single circuit court decision applying

the PLRA is implausible in the extreme.

17

II.

Respondents’ Interpretation Does Not

Further The PLRA’s Objectives.

A.

Respondents’ Approach Punishes

Litigants Who Have Meritorious

Claims That Merely Suffer From

Technical, Curable Defects.

Respondents acknowledge (at 31) that their interpretation of section 1915(g) results in prisoners

accruing strikes for failure to state a claim dismissals premised on “temporary, curable, procedural

flaw[s],” such as failure to exhaust available administrative remedies. Snider, 199 F.3d at 111; see also

U.S. Br. 26-27. But respondents fail to reconcile this

result with their own understanding of the PLRA’s

core objective: deterring “meritless” prisoner suits.

Resp. Br. 4. And contrary to respondents’ efforts to

downplay the practical implications of their interpretation, the resulting restriction on indigent prisoners’

access to federal courts would be troubling—to the

point of raising constitutional concern.

1. Numerous courts of appeals have recognized

that section 1915(g) generally does not impose a

strike for non-exhaustion—including in circuits on

respondents’ side of the circuit split. 5 But respondents and their amici acknowledge that their interpretation of section 1915(g) creates an anomalous exception: under their approach, a dismissal for failure to

exhaust only counts as a strike if a prisoner pleads

See, e.g., El-Shaddai v. Zamora, 833 F.3d 1036, 1043-1044

(9th Cir. 2016); Owens v. Isaac, 487 F.3d 561, 563 (8th Cir.

2007) (per curiam); Malek v. Reding, 195 F. App’x 714, 716

(10th Cir. 2006); Snider, 199 F.3d at 111.

5

18

facts that make non-exhaustion apparent on the face

of the complaint, because such an order can be characterized as a dismissal for failure to state a claim.

Resp. Br. 36; U.S. Br. 30-31. This result punishes

prisoners for candor that saves judicial resources:

plaintiffs can avoid a strike by omitting any allegations from their complaints relevant to exhaustion,

forcing the government and the Court to wait until

at least summary judgment to dispose of the case.

Pet. Br. 29-31. 6

2. Respondents try to minimize the harsh consequences of a rule that imposes strikes for temporary

procedural defects by arguing (at 38) that most exhaustion issues are not curable because most prison

systems impose tight administrative deadlines. (Respondents make a similar point (at 37-38) about actions dismissed as premature under Heck, noting the

infrequency of criminal-conviction reversals.) But

respondents’ argument is flawed as a matter of statutory interpretation, because they have “not shown

that Congress had reason to believe that every prison

6 The United States alone seems to question (at 31) the consensus that “a dismissal for failure to exhaust at a later stage”

than the pleadings does not qualify as a strike, but it offers no

support for its passing suggestion. Cf. Turley v. Gaetz, 625 F.3d

1005, 1013 (7th Cir. 2010) (holding that no strike accrued

where unexhausted claims were dismissed “at summary judgment”). Alternatively, the United States insists (at 31) that

petitioner has not identified an anomaly, because Congress

might have chosen to impose strikes only when an exhaustion

defect is most obvious. That argument misses the mark because the United States’ approach turns on what a prisoner has

alleged regarding exhaustion—not on whether the defect is especially glaring once it is revealed.

19

system would have relatively short and categorical

filing deadlines,” making it implausible to assume

that Congress would have regarded non-exhaustion

as the sort of permanent flaw that justifies imposing

a strike. Woodford, 548 U.S. at 101. Moreover,

“most grievance systems give administrators the discretion to hear untimely grievances.” Id. at 96, 101

(quoting respondent’s brief).

Further, there are cases in which prisoners have

cured procedural defects that previously resulted in

without-prejudice dismissals, allowing them to push

forward with renewed claims. Pet. Br. 31-35 & n.9.

To penalize prisoners under section 1915(g) in such

circumstances conflicts with the PLRA’s structure

and objectives.

3. Respondents also argue (at 31-35) that a handful of informal, discretionary court practices allowing

prisoners multiple opportunities to correct pleadings

before facing dismissal mitigates the practical impact

of their rule. But that patchwork of practices, which

vary by both judge and jurisdiction, provides little

reassurance that courts across the country will “ensure that potentially meritorious prisoner suits are

not hastily dismissed with a strike.” Id. at 35.

In any event, the Court should disfavor an interpretation of the PLRA that relies on significant additional judicial intervention to avoid unfair outcomes.

Respondents extol local practices in which judges engage in “many rounds of back and forth with the

prisoner to improve the complaint before making a

dismissal decision” that would result in a strike.

Resp. Br. 32. But district courts may reasonably

conclude that it would be more efficient to dismiss an

20

action without prejudice, allowing the court to clear

its docket while still providing the prisoner with a

chance to file a corrected pleading if he remains intent on pursuing his claim. Indeed, encouraging this

latter course is more consistent with the PLRA’s objective of ensuring that “the flood of nonmeritorious

[prisoner] claims” does not so burden the courts and

consume judicial attention as to “effectively preclude

consideration of the allegations with merit.” Jones,

529 U.S. at 203. Respondents’ interpretation, however, may dissuade judges from adopting the more

efficient approach because of the impact of a withoutprejudice dismissal on a prisoner’s future ability to

access federal court. 7

4. Constitutional avoidance principles further

counsel against respondents’ interpretation of section

1915(g), which would impose restrictions on prisoners’ future ability to access federal courts merely for

bringing actions that were dismissed without prejudice due to procedural defects. Pet. Br. 36-41. Respondents acknowledge (at 39) that application of

section 1915(g) may raise “constitutional concerns” in

7 The United States assumes (at 27) that prisoners will have at

least one chance to amend their complaints under Federal Rule

of Civil Procedure 15(a) before facing dismissal. But it is an

open question whether the PLRA displaces Rule 15(a) in prisoner cases by allowing district courts to dismiss prisoner suits

sua sponte “before service of process and without giving leave to

amend.” Christiansen v. Clarke, 147 F.3d 655, 658 (8th Cir.

1998) (emphasis added); see also Luevano v. Wal-Mart Stores,

Inc., 722 F.3d 1014, 1024 & n.3 (7th Cir. 2013) (acknowledging

circuit division on this issue); Ricks v. Mackey, 141 F.3d 1185

(10th Cir. 1998) (unpublished) (affirming sua sponte dismissal

without leave to amend in case governed by the PLRA).

21

certain cases, but insist that those concerns are irrelevant here, on the theory that petitioner’s complaint does not “seek[] to vindicate any fundamental

constitutional right.” Respondents miss the point. If

one interpretation of an ambiguous statute “would

raise a multitude of constitutional problems, the other should prevail—whether or not those constitutional

problems pertain to the particular litigant before the

Court.” Clark v. Martinez, 543 U.S. 371, 380-381

(2005) (emphasis added). Here, respondents’ interpretation would lead to situations in which applying

section 1915(g) might violate the Constitution by restricting indigent prisoners’ access to federal

courts—including in actions to vindicate fundamental constitutional rights that do not fall within the

statute’s narrow carve-out for actions alleging “imminent danger of serious physical injury”—based on

previous dismissals that reflect procedural failings

rather than any pattern of abusing IFP status.

Respondents’ alternative proposal would not save

section 1915(g) from constitutional doubt. Respondents suggest (at 39-40) that in fundamental-rights

cases, courts “could decide to . . . waive the filing fee

to avoid any constitutional concerns” with section

1915(g)’s application. But section 1915(g) unambiguously takes away courts’ discretion to exempt indigent prisoners from paying filing fees if they have

three strikes. See, e.g., Ladeairous v. Sessions, 884

F.3d 1172, 1173-1174 (D.C. Cir. 2018). Disregarding

Congress’s command and “waiv[ing] the filing fee” is

thus not an option that the statute leaves open.

Resp. Br. 39. Rather, it would be a remedy for an asapplied constitutional violation. See Daker v. Jackson, 942 F.3d 1252, 1258 (11th Cir. 2019) (acknowl-

22

edging potential contexts in which “waiver of the filing fee is constitutionally required for a three-strikes

litigant”).

For its part, the United States denies that prisoners have any constitutional right to “be relieved of

the costs of filing suit without regard to their prior

litigation misconduct.” U.S. Br. 31 (emphasis added). The United States’ own phrasing reveals the

problem with its position: it defends section 1915(g)’s

restriction on IFP eligibility as a sanction for abusive

and frivolous litigation tactics, but interprets the

statute to impose strikes for dismissals premised on

procedural defects that carry no suggestion of such

“abuse[].” Id. (quotation marks omitted).

B.

Petitioner’s Interpretation Provides

Courts With Ample Tools To Deter

Vexatious Prisoner Suits.

Contrary to the assertions of respondents and

their amici, their broad reading of section 1915(g) is

not needed to advance the PLRA’s objective of deterring meritless prisoner suits. In particular, the

United States’ assertion (at 29) that “petitioner’s rule

would allow” prisoners to burden courts with “limitless Heck-barred suits” is just wrong. As petitioner

made clear, courts may, when appropriate, dismiss

Heck-barred actions as “frivolous” or “malicious,”

which would result in a strike. Pet. Br. 41-42. Nor is

there anything unusual about trusting district courts

to decide whether a particular filing is “frivolous” or

“malicious.” See Denton, 504 U.S. at 33 (recognizing

that district courts “are in the best position to determine” whether a case is frivolous). District courts

dismissing Heck-barred actions can apply the same

23

standards for determining whether an action is frivolous or malicious that they always use. See p. 10-12,

supra; cf. Meja v. Harrington, 541 F. App’x 709, 710

(7th Cir. 2013) (recognizing that action barred by

Heck could not be considered “malicious” or “frivolous” because it had a plausible basis in case law).

The State amici argue that jurisdictions subject to

petitioner’s rule have seen an uptick in prisoner lawsuits (Arizona Br. 16-17), but the data does not support this charge. Citing a study comparing state-bystate prisoner filings in 1995 (before the PLRA) and

2014, the State amici contend that prisoner filings in

states in the Fourth Circuit rose relative to other

states post-McLean. Comparing filing rates in just

those two years (1995 and 2014) is not a useful way

to measure the impact of a decision issued in 2009.

But even on its own terms, the data do not fit the

State amici’s story. For example, Virginia’s filingrate ranking dropped ten spots (from 6 to 16) relative

to other states, while many of the biggest relative increases in prisoner filings came in states located in

circuits that have adopted respondents’ interpretation of section 1915(g) (e.g., California, Montana, and

South Dakota). Margo Schlanger, Trends in Prison

Litigation, as the PLRA Approaches 20, 28 Corr. Law

Reporter 69, 73 (2017). There is no circuit-based

pattern to which states saw increases in prisoner litigation, leading the study’s author to observe “that it

was not appellate precedent” driving state variations. Id. at 72.

24

CONCLUSION

The judgment of the Tenth Circuit affirming the

denial of petitioner’s application to proceed IFP

should be reversed.

Respectfully submitted.

ERIC D. LAWSON

GOODWIN PROCTER LLP

620 8th Ave.

New York, NY 10018

CHRISTOPHER J.C. HERBERT

GOODWIN PROCTER LLP

100 Northern Ave.

Boston, MA 02210

DANIEL R. MELLO, JR.

GOODWIN PROCTER LLP

601 Marshall St.

Redwood City, CA 94063

BRIAN T. BURGESS

Counsel of Record

STEPHEN R. SHAW

GOODWIN PROCTER LLP

1900 N St., N.W.

Washington, DC 20036

bburgess@goodwinlaw.com

(202) 346-4000

Counsel for Petitioner