Petition for Writ of Certiorari — Arthur J. Lomax, Petitioner v. Christina Ortiz-Marquez, et al.

Supreme Court briefFeb 5, 2019

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ANN i JiL

.No.

FIL

IN THE

FEB 052019

SUPREME COURT OF THE UNITED

STATES

ARTHUR JAMES LOMAX

(Your Name)

PETITIONER

vs.

CHRISTINA ORTIZ-MARQUEZ; NATASHA

KINDRED;DANNY DENNIS; MARY QUINTANA;

MR./ MRS.JOHN/ JANE DOE; JOSHUA FROST

RESPONDENT(S) ON PETITION FOR A WRIT OF

CERTIORARI TO

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR

CASE) United States Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

(Your Name)

Arthur James Lomax

(Address)

Limon Correctional Facility

P.O.Box 10000,

Limon Co 80826

QUESTION(S) PRESENLIST OF PARTIES

A dismissal of a civil action without prejudice for failure to state a claim, is it

or is it not a strike under 28 U.S.C. 1915(g)?

Courts have held that, unless otherwise specified, a dismissal for failure to

state a claim under Rule 12(b)(6) is presumed to be both a judgment on

the merits and to be rendered with prejudice, is this true or false?

"A district court's dismissal under Rule 12(b)(6) is, of course, with prejudice

unless it specifically orders dismissal without prejudice, is this true or

false?" [l]n the absence of a clear statement to the contrary, a dismissal

pursuant to Fed. R. Civ. P. 12(b)(6) is presumed to be with prejudice."

The Fourth Circuit Court decided a dismissal without prejudice for failure to

state a claim did not count as a strike under 28 U.S.G.S. 1915(g), but the

Tenth Circuit Court decided that a dismissal without prejudice do count as

a strike under the Prison Litigation Reform Act of 1 995(

PLRA)and/or 28

U.S.C.S. 1915(g), which court is right and, is this a legal conflict between

these two courts?

Would this statement of the Tenth Circuit be legally right or wrong, A

dismissal for failure to state a claim under Rule 12(b)(6) satisfy the plain

text of 1915(g) and therefore will count as a strike, without making an y

legal interpretation of this provision, inquiry, or analysis thereof in regard to

congress intent or purpose? When Congress directly incorporates

language with an established legal meaning into a statute, we may infer

that Congress intended the language to take on its established meaning.

United States v. Langley, 62 F. 3d 602, 605 (4th Cir. 1995) ("It is firmly

entrenched that Congress is presumed to enact legislation with knowledge

of the law; that is with the knowledge of the interpretation that courts have

given to an existing statute."); see also Miles v. Apex Marine Corp., 498 U.

S. 19, 32, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990) ("We assume that

Congress is aware of existing law when it passes legislation.").

Is it the Court task here to determine whether Congress intended an action

or appeal "that was dismissed on the grounds that it... fails to state a claim

upon which relief may be granted" to count as a strike under 28 U.S. C.

1915(g) if that dismissal was specifically designated to be "without

prejudice?"

The dismissal for failure to state a claim under Federal Rule of Civil

Procedure 12(b) (6) is a "judgment on the merits and, the type of prior

dismissal for failure to state a claim contemplated by subsection 1915(g) is

one that constituted an adjudication on the merits and prejudiced the filing

of a subsequent complaint with the same allegations, is this true or false?

Is it true, a dismissal without prejudice for failure to state a claim "does not"

fall within the plain and unambiguous meaning of 1915(g)'s unqualified

phrase "dismissed [for] fail[ure] to state a claim"? If true, As a result, a

dismissal without prejudice for failure to state a claim does not count as a

strike, is this true or false?

In any Circuit Court, will it be immaterial to the strikes analysis [whether]

the dismissal was without prejudice, as opposed to with prejudice? The

U.S. Court of Appeals for the Tenth Circuit stated, "[i}n this circuit, it is

immaterial ( Not material; not pertinent; of no consequence) to the strikes

analysis [whether] the dismissal was without prejudice," as opposed to with

prejudice.

Immaterial issue. An issue which occurs where a material allegation in the

pleadings is not answered, but an issue is taken on some point which will

not determine the merits of the case, so that the court must be at a loss to

determine for which of the parties to give judgment. Garland v. Davis (US)

4How 131, 146,11 LEd 907,914.

Is it true, a dismissal without prejudice for failure to state a claim is not an

adjudication on the merits, and, if true, does it permits a plaintiff to refile the

complaint as though it had never been filed? See Mendez v. Elliot, 45 F.3d

75, 78(4th Cir. 1995).

[ x] All parties appear in the caption of the case on the cover page.

[ I All parties do not appear in the caption of the case on the cover

A list

page.

of all parties to the proceeding in the court whose judgment is the

subject of this petition is as follows:

TABLE OF

CONTENTS

OPINIONS BELOW ................................................................................ I

JURISDICTION............................................................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE ........................................

REASONS FOR GRANTING THE WRIT ...........................................

CONCLUSION.............................................................................................

INDEX TO

APPENDICES

APPENDIX

APPENDIX F

cZs1

\i\2 ,2b1%

QrkcsJc

TABLE OF AUTHORITIES

CITED

CASES

PAGE

NUMBER

Lomax v. Hoffman, et al., No. 13-cv-03296-LTB (D. Cob. Jan. 23, 2014)_18

Lomax v. Hoffman, et al., No. 13-02131-LTB (D. Cob. Aug. 15, 2013)

Lomax v. Trani, et al., No. 13-cv-00707-WJM-KMT

Lomax v. Ortiz-Marquez, et al., No. 18-1250 (ioth Cir. Nov. 8, 2018

Coppedge v. United States, 369 U.S. 438 (1962)

See Lomax v. Hoffman, et al. No. 13-cv-03296-LTB (D. Cob. Jan.23,

2014)

Lomax v. Hoffman, et al. No. 13-02131-LTB (D. Cob. Aug. 15, 2013)_21

Lomax v. Trani, et al., No. 13-cv-00707-WJM-KMT

Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1969)

United States ex rel. Almeida v. Baldi (CA3 Pa) 195 172d 815, 33ALR2d

1407

Almeida v. Baldi (CA3 Pa) 195 F2d 815, 33ALR2d 1407

Ogens v. Northern Industrial Chemical Co. 304 Mass 401, 24 NE2d 1, 126

ALR 280

Olson v. Coalfield School Dist. 54 ND 657, 661, 210 NW 180, 181

W. T. Raleigh Co. v. Barnes, 143 Miss 597, 600, 109 So 8

Roden v. Roden, 29 Ariz 549, 243 P 413

Pulley v. Chicago, R. I. & P. Ry. Co. 122 Kan 269, 251 P 1100

D.C.No. 1:18-CV-00321-GPG-LTB

No. 18-1250, D. Colorado

Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S. Ct. 843, 136 L. Ed._26

808(1997)

States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S. Ct. 1026, 103 L.

Ed. 2d 290 (1989)).

United States v. Langley, 62 F.3d 602, 605 (4th Cir. 19950)

Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S. Ct. 317,112 L. Ed._27

Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3, 101 S.Ct.

2424, 69 L. Ed. 2d 103 (1981

Carter v. Norfolk Cmty. Hosp. Ass'n, 761 F.2d 970, 974 (4th Cir. I 985)_28

U.S. ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 241 (1 It Cir.

2004)

Mann v. Haigh, 120 F.3d 34, 36 (4th Cir. 1997)

Cooter & Gel v. Hartmarx Corp., 496 U.S. 384, 396, 110 S. Ct. 2447, 110 L.

Ed. 2d 359 (1990)

Mendez v. Elliot, 45 F.3d 75, 78 [*397] (4th Cir. 1995)........................28

Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000)............................29

Snider v. Melindez, 199 F.3d 108, 111 (2d Cir. 1999).........................30

Montcalm Publ. Corp. v. Virginia, 199 F.3d 168, 171 (4th Cir. 1999))......30

Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed.2d 798 (2007)..30

Jones, 549 U.S. at 203)............................................................31

Mann v. Haigh, 120 F.3d at 36....................................................31

Day v. Maynard, 200 F.3d 665 (loth Cir. 1999)................................31

Rivera v. Allin,144 F.3d 719 (llth Cir. 1998)....................................31

Patton v. Jefferson Correctional Center, 136 F.3d 458 (sth Cir. 1998)...31

O'Neal v. Price, 531 F.3d 1146 (9th Cir. 2008).................................31

MW v. Williams, 490 U.S. 319,109 S. Ct. 1827, 104 L. ed. 2d 338 32

Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002). .33

ton v. Hernandez, 504 U.S. 25, 29, 112 S. Ct. 1728, 118 L. Ed. 2340

Fm . .

Neitzke, 490 U.S. at 326...........................................................33

127 ....t.1955

AVt~c Cm,~)Twornbly 55

5 ~,V4

.°.

F.eAd. ,d 29

Neitzke, 490 U.S. at 327............................................................34

Twombly, 550 U.S. at 556..........................................................34

PoVi6839ugar Corp. v. Sugar Workers Local union 392, 10 F.3d 1064 th

De'lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003)...........................34

Cozzarelli v. Inspire Pharms. Inc.,549 F.3d 618, 630 (4th Cir. 2008).....35

Gadda v. State Bar of Cal., 511 F.3d 933, 939 (9th Cir. 2007)..............35

Bolding v. Holshouser, 575 F.2d 461, 464-65 (4t11 Cir. 1978)...............36

STATUTES AND RULES

Fed. R. Civ. P. 12(b)(1) and (6)

-11

Fed. R. App. P. 24

Fed. R. Civ. P. 41(b)

Rule 10(a)(b)

Fed. R. Civ. P. 12(b)(1) and (6)

Federal Rule of Civil Procedure 12(b)&)

Fed. R. Civ. P. 12(b)(6)

Rule 12(b)(6)

Federal Rule of Civil Procedure 1 2(b)(6)

Rule 12(b)(6)

Federal Rule of Civil Procedure 11

"Rule 12(b)(6)

Rule 12(b)(6)

OTHER

24 Am J2d Dism subsection 6 et seq

12,.-

24 Am J2d Dism Subsection 53 et seq

ZZI

5 Am J2d A & E subsection 905

Prison Litigation Reform Act of 1996.

141 Cong. Rec. S14,418 (1995)

141 Cong. Rec. S7526 (1995)

141 Cong. Rec. S14,627 (1995)

16 Am J2d Const L subsection 358

____________________

IN THE

SUPREME COURT OF THE

UNITED STATES PETITION FOR

WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

OPINIONS

BELOW

[X I For cases from federal courts:

The opinion of the United States court of appeals appears at

Appendix

to the petition and is

[I reported at

or, [I has been designated for publication but is not

yet reported; or, N is unpublished.

The opinion of the United States district court appears at

Appendix

to the petition and is

[] reported at

or, [ ] has been designated for publication but is not

yet reported; or, D(J is unpublished.

[ I For cases from state courts:

The opinion of the highest state court to review the

merits appears at

Appendix

to the petition

and is

[] reported at

or, [I has been designated for publication but is not

yet reported; or, [us unpublished.

The opinion of the

court appears at Appendix

the petition and is

[] reported at

or, [ ] has been designated for publication but is not

yet reported; or, [1 is unpublished.

JURISDICTION

[X ] For cases from federal courts:

The date on which the United States Court of Appeals

decidedmy case was November 8, 2018.

[1 No petition for rehearing was timely filed in my case.

[ Xi A timely petition for renearing was denied by the United

States Court of Appeals on the following date/, and a

copy of the order denying rehearing appears at'A5pendix

[1 An extension of time to file the petition for a writ of certiorari

was granted to and including

(date) on ____(date) in Application No. _A

The jurisdiction of this Court is invoked under 28 U. S. C.

1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that

decision appears at Appendix

[1 A timely petition for rehearing was thereafter denied on the

following date:

and a copy of the order denying

rehearing appears at Appendix

II] An extension of time to file the petition for a writ of

certiorari was granted to and including

(date) on (date) in Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. §

1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

28 U.S.C. 1915(g)

28 U.S.C. 1918

1915(g)

28 U.S.C. 1915(a) (3)

42 U.S.C. 1983

28 U.S.C. 1915(g)

28 u.s.c.s. 1915(g)

1915(g)

Pub. L. No. 104-134, 110 Stat. 1321-71(1996)

1915(g).

28U.S.C. 1915A(a)

28 U.S.C. 1915(b) (1)

28 U.S.C. 1915(q).

1983

1915

1915(q)

Section 1915(q)

28 U.S.C. 1915(q)

§ 1915(b)(4)

28 U.S.C. 1915(q)

1915(g)

1915(ci)'s

1915

Section 1915(i)'s

1915(g)

1915

1915(g)

1915

28 U.S.C. 1915(e)(2),

1983

Eighth Amendment

1915(q),

1915(q).

28 U.S.C. 1915(q).

1915(g)

STATEMENT OF THE CASE

Petitioner Arthur J. Lomax, aka Arthur James Lomax, is in the custody of the

Colorado Department of Corrections and currently is incarcerated at the Limon

Correctional Facility in Limon, Colorado. On February 8, 2018, Petitioner

initiated this action by filing pro se a Prisoner Complaint and a Prisoner's Motion

and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. 1915. Magistrate Judge

Gordon P. Gallagher reviewed the filings, found the Complaint not submitted on a

current Court-approved form, and directed Plaintiff to cure the deficiency, which

Petitioner did on February 27, 2018.

On March 18, 2018, Magistrate Judge Gallagher granted Petitioner leave to

proceed pursuant to 28 U.S.C. 1918. Also, on March 19, 2018, Magistrate Judge

Gallagher directed Petitioner to amend the Complaint, which he did on April 20,

2018. Subsequently, on April 24, 2018, Magistrate Judge Gallagher entered an

order that vacated the March 18, 2018 Order, because he had determined that

Petitioner on three or more occasions had brought an action that was dismissed on

grounds that it failed to state a claim. See ECF No. 13 at 1. The April 24, 2018

Order to Show Cause reads in part as follows:

The Order Granting Leave to Proceed Pursuant to 28 U.S.C. 1915(g) will be

vacated and Plaintiff will be directed to show cause why he should not be denied

leave to proceed pursuant to 28 U.S.C. 1915(g) for the following reasons.

It has been brought to the Court's (In the United States District Court for the

District of Colorado) attention that Plaintiff, on three or more occasions, has

brought an action that was dismissed on the grounds that it fails to state a claim.

See Lomax v. Hoffman, et al., No. 13-cv-03296-LTB (D. Cob. Jan. 23, 2014)

dismissed as barred by Heck); Lomax v. Hoffhian, et al., No. 13-02131-LTB (D.

Cob. Aug. 15, 2013) (dismissed as barred by Heck); Lomax v. Trani, et al., No.

13-cv-00707-WJM-KMT (dismissed for failure to state a claim pursuant to Fed. R.

Civ. P. 12(b)(1) and (6).

Furthermore, in the April 24, 2018 Order, Pursuant to 1915(g) Petitioner shouldn't

have been precluded from bringing the instant action in forma pauperis, because

both cases Lomax v. Hoffman were dismissed without prejudice, therefore, should

not count as strikes and in like manner Lomax v. Trani were also dismissed without

prejudice. On March 23, 2017, Plaintiff responded to the Order to Show Cause

from the United States District Court for the District of Colorado, and on July

6,2018, he also responded to the United States Court of Appeals for the 10' Circuit

June 19, 2018 Order to Show Cause within thirty-days from the date of each court

order. The U.S. District Court of Colorado erred when it denied Petitioner leave

to proceed pursuant to 1915 on June 4, 2018 because he wasn't subject to filing

restrictions under 1915(g) and he were indigent(sent proof in to the court of his six

months history bank-statement) at the time he was directed to pay the $400 filing

fee in full within thirty days. Further, the Tenth Circuit erred when it affirmed the

Court's finding that Petitioner has accumulated three strikes prior to commencing

this action. See Lomax v. Ortiz-Marquez, et al., No. 18-1250 (10t11 Cir. Nov. 8,

2018. And also the Court erred in dismissing this action because he couldn't pay

the $400 filing fee in full, within thirty-days. In addition, the Court also certifies

pursuant to 28 U.S.C. 1915(a) (3) that any appeal from this Order is not taken in

good faith, and, therefore, in forma pauperis status will be denied for the purpose

of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Petitioner files

a notice of appeal he must pay the full $500 appellate filing fee or file a motion to

proceed in forma pauperis in the United States Court of Appeals for the Tenth

Circuit within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is

ORDERED that the Complaint and action are dismissed "without

prejudice" pursuant to Fed. R. Civ. P. 41(b) because Plaintiff failed to pay the filing

fee in full within the time allowed. It is

FURTHER ORDERED that leave to proceed in forma paupers on appeal is

denied.

DATED at Denver, Colorado, this 13' day of November, 2018.

BY THE COURT:

s/Lewis T. Babcock

LEWIS T. BABCOCK, Senior Judge

II,

REASONS FOR GRANTING THE PETITION

See, Rules of the Supreme Court of the United States.

PART Ill. JURISDICTION ON WRIT OF CERTIORARI

Rule 10. Considerations Governing Review on Certiorari

Review on a writ of certiorari is not a matter or right, but of judicial

discretion. A petition for a writ of certiorari will be granted only for

compelling reasons. The following, although neither controlling nor fully

measuring the Court's discretion, indicate the character of the reasons the

Court considers:

(a)a United States court of appeals has entered a decision in conflict

with the decision of another United States court of appeals on the

same important matter; has decided an important federal question in

a way that conflicts with a decision by a state court of last resort; or

has so far departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower court, as to

call for an exercise of this Court's supervisory power;

(b)a state court or a United States court of appeals has decided an

important question of federal law that has not been, but should be,

settled by this Court, or has decided an important federal question in

a way that conflicts with relevant decisions of this Court.

In regard to both of these cases the nature of them were habeas corpus

claims raised on an incorrect 42 U.S.C. 1983 form, which were not civil

action. See Lomax v. Hoffman, et al. No. 13-cv-03296-LTB (D. Cob.

Jan.23, 2014) (dismissed as barred by Heck); Lomax v. Hoffman, et al. No.

13-02131-LTB (D. Cob. Aug. 15, 2013) (dismissed as barred by Heck): The

District Court in it's Order stated, "that the Prisoner complaint and action

are dismissed without preiudice because the habeas corpus claims may not

be raised in this action pursuant to 42 U.S.C. 1983 and the claims for

damages barred by the rule in Heck.

FURTHER ORDERED that leave to proceed in forma pauperis on

appeal is denied without preludice to the filling of the motion seeking leave

to proceed in Forma pauperis is on appeal in the united States Court of

Appeals for the Tenth Circuit, Dated at Denver, Colorado, this 15 1h day of

August, 2013. BY THE COURT: Is! Lewis T. Babcock! LEWIS T. BABCOCK,

Senior Judge, United States District Court.

In the third case Lomax v. Trani, et al., No. 13-cv-00707-WJMKMT(dismissed for failure to state a claim pursuant to Fed. R. Civ. P.

12(b)(1) and (6):

The Court stated, It is apparent that Mr. Lomax's claims in the Prisoner

Complaint implicate the validity of his criminal conviction and sentence. It

also is apparent that Mr. Lomax has not invalidated the criminal conviction

sentence he is challenging in this action. There, the Court finds that Mr.

Lomax's claims for damages are barred by the rule in Heck and must be

dismissed. The dismissal will be without preiudice. See Fottler v. United

States, 73 F.3d 1064, 1065 (loth Cir. 1969). The action will be dismissed

without further notice. Dated March 20, 2013, at Denver, Colorado. BY THE

COURT: Is! Boyd N. Boland, United States Magistrate Judge.

Without prejudice. A judicial act without effect a final determination or res

judicata. United States ex rel. Almeida v. Baldi (CA3 Pa) 195 F2d 815, 33

ALR2d 1407; Ogens v. Northern Industrial Chemical Co. 304 Mass 401, 24

NE2d 1, 126 ALR 280. The term imports that no right or remedy of the

parties is affected. The use of the phrase simply shows that there has been

no decision of the case upon the merits, and prevents the defendant from

setting up the defense of res adjudicate. Olson v. Coalfield School Dist. 54

ND 657, 661, 210 NW 180, 181.

Dismissal without prejudice. A voluntary dismissal of an action or

proceeding without an adjudication of the cause that would prevent the

bringing of a new action upon the same cause. 24 Am J2d Dism subsection

6 et seq. An order of dismissal of an action reciting that it is without

prejudice, the effect of which is to prevent, the dismissal from operating as a

bar to any new suit which the plaintiff might thereafter desire to bring on the

same cause of action. W. T. Raleigh Co. v. Barnes, 143 Miss 597, 600, 109

With prejudice. The effect of a final adjudication as res judicata.

Dismissal with prejudice. An order of dismissal granted on motion of the

defendant made without reservation as to prejudice. 24 Am J2d Dism

Subsection 53 et seq. An adjudication on the merits of the case, a final

disposition of the controversy which bars the right to bring or maintain an

action on the same claim or cause of action. Roden v. Roden, 29 Ariz 549,

243 P 413; Pulley v. Chicago, R. I. & P. Ry. Co. 122 Kan 269, 251 P 1100.

Dismissal of appeal. The refusal by the appellate court to examine the

merits of the cause-that is, a dismissal on a ground not involving the merits

of the cause. 5 Am J2d A & F subsection 905.

A Dismissal Without Prejudice for Failure to State a Claim Do Not

Count as a Strike Under 28 U.S.C.S.1915(g)

Each dismissal for failure to state a claim which the U.S. District Court

for the District of Colorado and/or the U.S. Court of Appeals for the Tenth

Circuit cited above, does not qualify as a "strike" under 28 U.S.C. 1915(g),

because the Petitioner/Mr. Lomax's three cases were dismissed "without

prejudice" for failure to state a claim. As a result, Mr. Lomax/Petitioner is

not a three-striker and the court should have granted him leave to proceed

in forma pauperis (IFP) in his current case or action(D.C.No. 1:1 8-CV00321-GPG-LTB and/or No. 18-1250, D. Colorado), and without the

requirement of him paying the $400 filing fee in full.

While incarcerated, the prisoner filed six non-habeas actions that were

dismissed for failure to state a claim upon which relief might be granted.

Four of the six actions were dismissed without prejudice. The court (Fourth

Circuit) held that a dismissal without prejudice for failure to state a claim did

not count as a strike under 28 U.S.C.S. 1915(g) of the Prison Litigation

Reform Act of 1996. The type of prior dismissal for failure to state a claim

contemplated by 1915(g) was one that constituted an adjudication on the

merits and prejudiced the filing of a subsequent complaint with the same

allegations. Thus, the prisoner had only two strikes under 1915(g). As a

result, the prisoner was permitted to proceed on appeal without the

prepayment of filing fees because he had fewer than three prior dismissals

that counted as strikes under 1915(g). See Mclean v. United States, 566

F.3d 391.

The Prison Litigation Reform Act of 1 996(PLRA or Act), Pub. L. No. 104134, 110 Stat. 1321-71(1996), limits the ability of prisoners to file civil

actions without prepayment of filing fees. When a prisoner has previously

filed at least three actions or appeals that were dismissed on the grounds

F**21 that they were frivolous, malicious, or failed to state a claim upon which

relief mwy be granted, the Act's "three strikes" provision requires that the

prisoner demonstrate imminent danger of serious [*394] physical injury in

order to proceed without prepayment of fees. 28 U.S.C. 1915(q). The main

issue before this Court today is whether a dismissal without rreiudice for

failure to state a claim counts as a strike under 1915(q). Mr. Lomax's

argument" a dismissal without preiudice for failure to state a claim does not

count as a strike" under 1915(g). For example in this similar case. Four of

the six previous actions filed by Quentin McLean, the plaintiff-appellant in

this case, were dismissed without preiudice for failure to state a claim. As a

result, McLean is not a three-striker, and he was allowed to proceed in his

appeal without the prepayment of filing fees.

The district court that screened Mr. Lomax's present complaint erred when it

concluded that all three dismissals (without preiudice) qualified as strikes for

purposes of 1915(g).

HN2 The PLRA requires [**3] a district court to engage in a preliminary

screening of any complaint in which a prisoner seeks redress from a

governmental entity or an officer or employee of a governmental entity.

28U.S.C. 1915A(a). The court must identify 'cognizable claims or dismiss

the complaint, or any portion [thereof, that] is frivolous, malicious, or fails to

state a claim upon which relief may be granted." 28 U.S.C. 1915(b) (1). HN3

The "three strikes" provision of the PLRA, 1915(g), denies in forma pauperis

(1FF) status to any prisoner who: 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. 28 U.S.C. 1915(ci).

A review of Mclean's [**6] litigation history reveals that while incarcerated in

Virginia, he had filed six non-habeas actions that were dismissed on

grounds that might qualify them as strikes under 1915(q). Specifically, all six

actions were dismissed for failure to state a claim upon which relief can be

granted. Four were dismissed without prejudice and the remaining two were

simply dismissed, with one order noting that the dismissal counted as a

strike for PLRA purposes. 11.

The U.S. Court of Appeals for the Tenth Circuit stated, "i[n] this circuit, it is

immaterial to the strikes analysis [whether] the dismissal was without

prejudice," as opposed to with prejudice.See(ORDER AND JUDMENT,

dated November 8, 2018, page 5.)

The court should have reached the merits of his present 1983 complaint

and/or appeal being he was eligible to proceed without prepayment of fees

under 1915 (the IFP statute). To resolve the eligibility issue, the court must

determine whether Mr. Lomax has fewer than three prior dismissals that

counts as strikes or, if not, whether he is in imminent danger of serious

physical injury. F**81 The determination of whether Mr. Lomax is a threestriker under 191 5 g) turns on whether a dismissal without prejudice for

failure to state a claim counts as a strike. The court should have concluded

for the following reasons that such a dismissal is not a strike.

Section 1915(q) includes in its list of strikes an action or appeal "that was

dismissed on the grounds that it... fails to state a claim upon which relief

may be granted." 28 U.S.C. 1915(q). In interpreting this provision, the court

must first determine whether its language "has a plain and unambiguous

meaning with regard to the particular dispute in the case."

Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S. Ct. 843, 136 L. Ed. 808

1. Even so, 1915(b)(4) provides that "[i]n no event shall a prisoner be prohibited from bringing a

civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets

and no means by which to pay the initial partial filing fee."

(1997). "The plainness or ambiguity of statutory language is determined by

reference to the language itself, the specific context in which that language

is used, and the broader context of the statute as a whole." Id. At 341. "Our

inquiry must cease if the statutory language is unambiguous and 'the

statutory scheme is coherent and consistent." Id. At 340 (quoting United

States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S. Ct. 1026, 103 L.

Ed. 2d 290 (1989)).

The court task here is to determine whether Congress intended an action or

appeal "that was dismissed on the grounds that [**91 it... fails to state a

claim upon which relief may be granted" to count as a strike under 28 U.S.C.

1915(g) if that dismissal was specifically designated to be "without

prejudice." The language "fails to state a claim upon which relief may be

granted" in 1915(g) closely tracks the language of Federal Rule of Civil

Procedure 12(b)(6). Compare Fed. R. Civ. P. 12(b)(6) (listing "failure to state

a claim upon which relief can be granted" as grounds for dismissal). When

Congress directly incorporates language with an established legal meaning

into a statute, we may infer that Congress intended the language to take on

its established meaning. United States v. Langley, 62 F.3d 602, 605 (4th Cir.

19950) ("It is firmly entrenched that Congress is presumed to enact

legislation with knowledge of the law; that is with the knowledge of the

interpretation that courts have given to an existing statute."); see also Miles

v. Apex Marine Corp., 498 U.S. 19, 32, 111 S. Ct. 317, 112 L. Ed. 2d 275

(1990) ("We assume that Congress is aware of existing law when it passes

legislation.").

When the word "dismissed" is coupled with the words "[for] fail[ure] to state

a claim upon which relief may be granted," the complete phrase has a well27

established [**10] legal meaning. Courts have held that, unless otherwise

specified, a dismissal for failure to state a claim under Rule 12(b)(6)-is

presumed to be both a judgment on the merits and to be rendered with

prejudice. See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3,

101 S.Ct. 2424, 69 L. Ed. 2d 103 (1981) ("The dismissal for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6) is a 'judgment on the

merits."); Carter v. Norfolk Cmty. Hosp. Ass'n, 761 F.2d 970, 974 (4th Cir.

1985) ("A district court's dismissal under Rule 12(b)(6) is, of course, with

prejudice unless it specifically orders dismissal without prejudice."); U.S. ex

rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 241 (1st Cir. 2004)

("[I]n the absence of a clear statement to the contrary, a dismissal pursuant

to Fed. R. Civ. P. 12(b)(6) is presumed to be with prejudice.").

It follows that the type of prior dismissal for failure to state a claim

contemplated by 1915(g) is one that constituted an adjudication on the

merits and prejudiced the filing of a subsequent complaint with the same

allegations. In contrast, a dismissal without prejudice for failure to state a

claim is not an adjudication on the merits, Mann v. Haigh, 120 F.3d 34, 36

(4th Cir. 1997); 1111 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396,

110 S. Ct. 2447, 110 L. Ed. 2d 359(1990), and "permits a plaintiff to refile

the complaint as though it had never been filed," Mendez v. Elliot, 45 F.3d

75, 78 1*3971 (4th Cir. 1995). Consequently, a dismissal without preiudice for

failure to state a claim does not fall within the plain and unambiguous

meaning of 1915(q)'s unqualified phrase "dismissed... [for] fail[ure] to state

a claim." As a result, a dismissal without prejudice for failure to state a claim

does not count as a strike. Although our conclusion as to the unambiguous

meaning of an unqualified dismissal for failure to state a claim in the context

of 1915 is sufficient to end our inquiry. The government's and the dissent's

assertions that the legislative purpose of the PLRA supports a contrary

interpretation. The impetus behind the enactment of the PLRA was a

concern about the "endless flood of frivolous litigation" brought by inmates.

141 Cong. Rec. SI 4,418 (1995) (statement of Sen. Hatch). The Act's

proponents expressed dismay because these frivolous suits were "draining

precious judicial resources." 141 Cong. Rec. S7526 (1995) (statement of

Sen. Kyl); see also 141 Cong. Rec. S14,418 (1995) [**I21 (statement of

Sen. Hatch) ("The crushing burden of these frivolous suits makes it difficult

for courts to consider meritorious claims.").

The purpose of the PLRA was not, however, to impose indiscriminate

restrictions on prisoners' access to the federal courts. Senator Kyl

emphasized that the Act would "free up judicial resources for claims with

merit by both prisoners and nonprisoners." 141 Cong. Rec. S7526 (1995)

(statement of Sen. Kyl); see also 141 Cong. Rec. S14,627 (1995)

(statement of Sen. Hatch) ("I do not want to prevent inmates from raising

legitimate claims. This legislation will not prevent those claims from being

raised.") As other courts have concluded, "[t]here is no doubt that the

provisions of the PLRA. were meant to curb the substantively meritless

. .

prisoner claims that have swamped the federal courts." Shane v. Fauver,

213 F.3d 113, 117 (3d Cir. 2000) (emphasis in original).

Because a dismissal without prejudice for failure to state a claim is not an

adjudication on the merits, treating such a dismissal as a strike would

undermine Congress's intent. A potentially meritorious but inartfully pleaded

claim by a prisoner that is dismissed without prejudice for failure [**1 31 to

state a claim is wholly distinct from a claim that is dismissed as frivolous,

malicious, or substantively meritless. The former claim might be revived by

competent pleading, but the latter cannot. As the Second Circuit explained:

Section 191 5(g)'s mandate that prisoners may not qualify for IFP status if

their suits have thrice been dismissed on the ground that they were

'frivolous, malicious, or fail[ed] to state a claim' was intended to apply to

nonmeritorious suits dismissed with prejudice, not suits dismissed without

preiudice for failure to comply with a procedural prerequisite. Snider v.

Melindez, 199 F.3d 108, 111 (2d Cir. 1999) (alteration in original). To treat as

equivalent nonmeritorious suits dismissed with prejudice and those

dismissed without prejudice for failure to state a claim by counting both as

strikes would cut against the clearly expressed goal of Congress.

The dissent nevertheless contends that it is "evident" that the "legislative

purpose underlying 1915(g)" does not support our (4th Circuit Court)

construction of the statute. Post at n.8. The cases cited by the dissent,

however, do not demonstrate that Congress intended 191 5(g)'s strike

designation to reach potentially meritorious F**141 claims.

[*3981 The dissent is of course correct in noting that, at the broadest level,

"the PLRA's 'focus is to limit litigation brought by prisoners," post at 19

(quoting Montcalm Publ. Corp. v. Virginia, 199 F.3d 168, 171 (4th Cir. 1999)).

A broadly conceived purpose does not imply, however, that Congress

intended to use a meat-axe approach to achieve the purpose. The Supreme

Court's opinion in Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed.2d

798 (2007), cited frequently by the dissent, fully supports our understanding

of the goal of the PLRA. As the dissent itself explains, using the language of

Jones, "[a]Ithough our legal system 'remains committed to guaranteeing that

prisoner claims.., are fairly handled according to law,' the 'challenge lies in

ensuring that the flood of nonmeritorious claims does not submerge and

effectively preclude consideration of the allegations with merit." Post at 18

(quoting Jones, 549 U.S. at 203) (emphasis added). A dismissal without

prejudice for failure to state a claim is not an adjudication on the merits of

the claim. Mann v. Haigh, 120 F.3d at 36. Consequently, a suit dismissed

without prejudice for failure to state a claim cannot properly be characterized

as ultimately nonmeritorious; F**151 that determination has simply not been

made.

The government (in the past) also cites one circuit court opinion, Day v.

Maynard, 200 F.3d 665 (loth Cir. 1999), which held that a dismissal without

prejudice is a strike under the PLRA. Day is a Tenth Circuit per curiam

opinion that offers no analysis to support its holding; it only states that "a

dismissal without prejudice counts as a strike, so long as the dismissal is

made because the action is frivolous, malicious, or fails to state a claim."

200 F.3d at 667. Day relies on opinions from two other circuits as authority,

Rivera v. Allin,144 F.3d 719 (lith Cir. 1998); and Patton v. Jefferson

Correctional Center, 136 F.3d 458 (5 th Cir. 1998). Nether Rivera nor Patton,

however, informs the 4th Circuit decision today because neither case

involved a dismissal without prejudice for failure to state a claim. The

dismissal without prejudice analyzed in Rivera and Patton were dismissal for

frivolousness, abuse of the judicial process, and failure to exhaust

administrativeremedies. The Rivera and Patton courts had no occasion to

examine the implications of their holdings on the type of dismissal at issue in

this case, a dismissal for failure to state a claim.

• Finally, (in the past) the dissent relies on a more recent case from the

Ninth Circuit, O'Neal v. Price, 531 F.3d 1146 (9th Cir. 2008). There, a

divided panel concluded that a denial of an application to proceed lFP

constituted "bringing" an action for purposes of 1915(g). the court also

held that any 1915 dismissal, however styled and regardless of

whether it was rendered with leave to refile, counts as a strike. After

noting that 1915(g) "does not distinguish between dismissals with and

without prejudice," the court said that it "decline[d] to read into the statute an additional requirement not enacted by Congress." 531 F.3d at

1154, 1155. (The Fourth Circuit expressed), Our holding today, however, does not read an additional requirement into the statute that was

not already implied by Congress' use of the familiar phrase "dismissed... [for] fail[ure] to state a claim.' 2J

An unqualified dismissal for failure to state a claim is presumed to operate

with prejudice; the addition of the words 'with prejudice" 1*3991 to modify

such a dismissal is simply not necessary.

Our(Fourth Circuit)holding that a dismissal without prejudice for failure to

state a claim is not a strike does not, we recognize, resolve whether a

dismissal for frivolousness rendered without prejudice would count as a

strike. However, nothing in our analysis of dismissal for failure to state a

claim suggests that dismissals for frivolousness should be exempted from

1915(q)'s strike designation, even when the dismissal is rendered without

prejudice.

Indeed, the Supreme Court's detailed comparison in Neitzke v. Williams,

490 U.S. 319, 109 S. Ct. 1827, 104 L. ed. 2d 338 (1989), of dismissals for

failure to state a claim under Rule 12(b)(6) and dismissal for frivolousness

under 1915 (the IFP statute) makes clear that meaningful differences exist

between these two types of dismissal. In Neitzke the Court considered

whether an IFP complaint that fails to state a claim under Rule 12(b)(6) is

21. For the same reason, our holding does not, as the dissent suggests, see post at 27, read

any words into the statute that are not already implied by well-established legal 1**1 71 meaning. See part ILA, supra

automatically frivolous within the meaning of the IFP statute. Id. At 320. In

concluding that the two categories were distinct, the Court explained that a

complaint is frivolous only "where it lacks an arguable basis either in law or

in fact." Id. at 325. The Court also noted that the IFP statute's sua sponte

dismissal [**181 provision, now 28 U.S.C. 1915(e)(2), is designed largely to

discourage the filing of, and waste of judicial and private resources upon,

baseless lawsuits that paying Iftigants generally do not initiate because of

the costs of bringing suit and because of the threat of sanctions for bring

vexatious suits under Federal Rule of Civil Procedure 11. To this end, the

statute accords judges not only the authority to dismiss a claim based on an

indisputably meritless legal theory, but also the unusual power to pierce the

veil of the complaint's factual allegations and dismiss those claims whose

factual contentions are clearly baseless.

Id. At 327. Examples of frivolous claims include those whose factual

allegations are "so nutty", "delusional," or "wholly fanciful" as to be simply

"unbelievable." Gladney v. Pendleton Corr. Facility, 302 F.3d 773 774 (7th

Cir. 2002); Denton v. Hernandez, 504 U.S. 25, 29, 112 S. Ct. 1728, 118 L.

Ed. 2d 340 (1992).

In contrast, "Rule 12(b)(6) authorizes a court to dis miss a claim on the basis

of a dispositive issue of law." Neitzke, 490 U.S. at 326. "This procedure,

operating on the assumption that the factual allegations in the complaint are

true, streamlines litigation by dispensing with needless [** 191 discovery and

facifinding." Id.at 326-27. Although the Supreme Court has subsequently

made clear that the factual allegations in a complaint must make entitlement

to relief plausible and not merely possible, see Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 554-63, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007),

"[w]hat Rule 1 2(b)(6) does not countenance are dismissals based on a

judge's disbelief of a complaint's factual allegations," Neitzke, 490 U.S. at

327; see also Twombly, 550 U.S. at 556. "District court judges looking to

dismiss claims on such grounds must look elsewhere for legal support."

Neitzke, 490 U.S. at 327. "[A] well-pleaded complaint may proceed even if it

strikes a savvy judge that actual proof of the facts alleged is improbable and

that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556

(internal quotations omitted). Neitzke makes clear that a dismissal for

frivolousness is of a qualitatively different character than a dismissal for

failure to state a claim. As a result, our (Fourth Circuit) decision today is fully

consistent with Congress' dual goals F**201 of reducing prisoner litigation

and, at the same time, preserving meaningful access to the courts for

prisoners with potentially meritorious claims. In expressing its concerns to

the contrary, the dissent, post at 28-30, posits a situation in a district court is

confronted with a prisoner's complaint that "wholly lack[s] merit" and

dismisses the complaint without prejudice for failure to state a claim. The

dismissal is appealed, and this court entertains the appeal pursuant to

Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th

Cir. 1993), and affirms the dismissal. The dissent contends that failure to

count the district court's dismissal as a strike would undermine the goals of

the PLRA. To illustrate its argument the dissent invokes De'lonta v.

Angelone, 330 F.3d 630 (4th Cir. 2003).

De'Ionta, however, does not substantiate the dissent's concerns. In De'Ionta

a prisoner brought a 1983 claim alleging denial of adequate medical

treatment in violation of the Eighth Amendment. Although the district court

was "unable to conceive of any set of facts under which the Eighth

Amendment would entitle" the plaintiff to relief, it nevertheless dismissed the

complaint [**211 without prejudice to avoid "complicating any future actions

with issues of collateral estoppel or claim preclusion." 330 F.3d at 633.

De'Ionta does not help the dissent for two reasons. First, upon review, our

(Fourth Circurit) court actually reversed the district court's Rule I 2(b)(6)

dismissal and remanded the case for further proceedings. Thus, De'Ionta is

hardly an illustration of a complaint that "wholly lack[s] merit," the type of

complaint the PLRA sought to address. Second, because we reversed the

district court's dismissal, we had no cause to address the appropriateness of

the district court's decision to dismiss De'Ionta's suit "without prejudice." To

the extent, however, that a district court is truly unable to conceive of any set

of facts under which a plaintiff would be entitled to relief, the district would

err in designating this dismissal to be without prejudice. Courts, including

this one, have held that HN8 when a complaint is incurable through

amendment, dismissal is properly rendered with prejudice and without leave

to amend. See Cozzarelli v. Inspire Pharms. lnc.,549 F.3d 618, 630 (4th Cir.

2008) (affirming dismissal with prejudice where amendment would have

been futile); F**221 see also, e.g., Gadda v. State Bar of Cal., 511 F.3d 933,

939 (9th Cir. 2007) ("Because allowing amendment would be futile, we hold

that the district court properly dismissed [plaintiff's] claims with prejudice and

without leave to amend.").

Rather than compelling and overbroad interpretation of the term "dismiss"

when used in the context of failure to state a claim under 1915(g), we

suggest De'Ionta intead counsels that courts remain mindful of the

distinction between an unqualified dismissal for failure to state a claim and a

dismissal without prejudice. HN9 While a potentially meritorious claim,

particularly by a pro se litigant, should not be unqualifiedly dismissed for

failure to state a claim unless its deficiencies are truly incurable, see Bolding

v. Holshouser, 575 F.2d 461, 464-65 (4th Cir. 1978), such an F*4011

unqualified dismissal is entirely proper when the court has reviewed the

claim and found it to be substantively meritless. Once a court has

determined that the complaint is truly unamendable, a dismissal without

prejudice is of little benefit to the litigant, as the claim cannot be made viable

through reformulation. Similarly, dismissal of such a complaint without

prejudice works F**231 to defeat the PLRA's goal of reducing substantively

meritless prisoner lawsuits because it allows the prisoner to file the same

meritless claim again. When a district court is confronted with a complaint

that fails not because of some technical deficiency but because its claims

lack legal merit, this complaint is properly dismissed for failure to state claim

that is, finally and prejudicially disposed of. Rather than detracting from

Congress' goal of reducing meritless prisoner litigation, today's decision will

preserve the ability of district courts to meaningfully distinguish between

poorly pled but potentially meritorious claims and those that simply lack

merit. Any prisoner whose complaint falls in the latter category will be

penalized with a strike as the PLRA intended.

McLean has had six prior civil actions dismissed. Because four of those

dismissal were without prejudice for failure to state a claim, he has accrued

only two strikes under 1915(q).

Accordingly, the clerk's order allowing him to proceed in this appeal without

full prepayment of fees will be allowed to stand. Because McLean is not a

"three striker," it is not necessary for us to consider his claim that he [**241 is

under imminent danger of serious physical injury.

In sum, we (Fourth Circuit) hold that HNI3 the dismissal of a prisoner's

complaint without prejudice for failure to state a claim does not count as a

strike under 28 U.S.C. 1915(ci). This holding means that McLean does not

have three strikes under 1915(g) and that he can proceed in this appeal

without the prepayment of filing fees.

Under the circumstances the United States District Court and/or the United

States Court of Appeals for the Tenth Circuit erred in their order and

judgment and, prejudiced and defaulted Mr. Lomax and/or the Petitioner in

their order, judgment, and decision. And therefore, deprived the petitioner of

his rights and liberty interest. The right to protection from violation of any of

the fundamental conceptions of justice which lie at the base of our civil and

political institutions. 16 Am J2d Const L subsection 358.

Please see exhibits and/or supporting legal documents attachments.

Respectfully submitted on February 5, 2019.

Ist

am"I so

Ilk

CERTIFICATE OF SERVICE

I, Arthur J. Lomax, certify that on February 5, 201 9(date) the original was

mailed to the Court for filing; and, a true and accurate copy of the Writ of

Certiorari(title of the document) was served on the other party by placing it

in the United States mail, postage pre-paid, and addressed to the following:

To: The Attorney General

1300 Broadway, 1 0th Floor

Denver, Colorado 80826

Ed jZ-4

Arthur J. Lomaxall

Limon Correctional Facility

P.O. Box 10000

Limon, Colorado 80829

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Date: February 5, 2019

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.