Case No. 18-8369 | 10th Cir.
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In Lomax v. Ortiz-Marquez, the Supreme Court will determine whether “a dismissal without prejudice for failure to state a claim count[s] as a strike under 28 U.S.C. § 1915(g)” and whether Lomax (“Petitioner”) is able to proceed in forma pauperis (“IFP”) in his civil rights action. Brief for Petitioner at i, Lomax v. Ortiz-Marquez, No. 18-8369 (U.S. filed Dec. 9, 2019).
Federal law exempts indigent litigants from required court fees. With limited exceptions, the Prison Litigation Reform Act (“PLRA”) bars prisoners from proceeding IFP if they have “brought an action . . . that was dismissed on the grounds that it [was] frivolous, malicious, or fail[ed] to state a claim” on three or more occasions while incarcerated. 28 U.S.C. § 1915(g).
Petitioner is an inmate at the Limon Correctional Facility. He filed a motion to proceed IFP in a civil rights action. The district court denied Petitioner’s motion, and the Tenth Circuit affirmed because three of his previous actions were dismissed for failing to state a claim. Two of these actions were dismissed without prejudice.
Petitioner argues the Tenth Circuit incorrectly held that under PLRA § 1915(g), a dismissal without prejudice for failure to state a claim counts toward PLRA’s “three strikes.” Brief for Petitioner at 14, Lomax v. Ortiz-Marquez, No. 18-8369 (U.S. filed Dec. 9, 2019). First, Petitioner argues that because the language in § 1915(g) was taken directly from the Federal Rule of Civil Procedure 12(b)(6), courts should apply § 1915(g) “in light of this legal backdrop” and because dismissals without prejudice under 12(b)(6) are not dismissals on the merits, dismissals without prejudice should not count as strikes under § 1915(g). Id. at 10–11. Second, Petitioner argues that because the only other types of dismissals referenced in § 1915(g) are dismissals “that cannot succeed and should not return to court,” Congress did not intend non-merits-based dismissals, such as dismissals entered without prejudice, to count as strikes. Id. at 22. Third, Petitioner cites PLRA’s legislative history and argues that because the law was intended to allow prisoners to pursue legitimate grievances, “imposing strikes for temporary and curable procedural errors” would be at odds with Congress’s intent. Id. at 12.
The Government (“Respondent”) argues a dismissal without prejudice for failure to state a claim should count as a strike under § 1915(g) based on numerous canons of statutory interpretation. First, Respondent cites Black’s Law Dictionary, which explains that “dismissed” includes dismissals with and without prejudice. Second, Respondent argues that courts’ presumption that 12(b)(6) dismissals are “with prejudice,” implies that some 12(b)(6) dismissals are “without prejudice” and thus the phrase “dismissal for failure to state a claim” includes dismissals with and without prejudice. Brief for Respondents at 16, Lomax v. Ortiz-Marquez, No. 18-8369 (U.S. filed Jan. 15, 2020). Third, because § 1915(g) considers dismissals without prejudice for frivolous or malicious claims to be strikes, this section should also count dismissals without prejudice for failure to state a claim as a strike. Fourth, the phrase “dismiss for failure to state a claim” or its equivalent appears five times in the PRLA, and interpreting § 1915(g) to only refer to dismissals without prejudice would require the phrase to have different meanings within the same statute. Id. at 21–22. Fifth, while Congress typically differentiates between dismissals with and without prejudice, there is no such differentiation here. Finally, Respondent argues that legislative history demonstrates § 1915(g) was intended to limit frivolous access to federal courts and should be interpreted accordingly.