Three Strikes, You’re Out: Supreme Court to Consider Limit on Prisoner Litigation

Three Strikes, You’re Out: Supreme Court to Consider Limit on Prisoner Litigation

Legal Sidebari
Three Strikes, You’re Out: Supreme Court to
Consider Limit on Prisoner Litigation
Updated June 8, 2020
UPDATE: The Supreme Court issued its opinion in Lomax v. Ortiz-Marquez on June 8, 2020. The full
Court agreed that “[t]he text of Section 1915(g)’s three-strikes provision refers to any dismissal for
failure to state a claim, whether with prejudice or without.”
The original post from February 20, 2020, is below.
The Administrative Office of the United States Courts reports that in 2018, state and federal prisoners
filed nearly 54,000 suits in federal district court. Such litigation, which often chal enges the conditions of
confinement in federal and state prisons, may al ow prisoners to vindicate fundamental rights but can also
place a heavy burden on the federal courts that hear the cases and the government officials who must
defend against them. The Prison Litigation Reform Act (PLRA) seeks to balance those competing
interests, “ensuring that the flood of nonmeritorious claims does not submerge and effectively preclude
consideration of the al egations with merit.” On February 26, 2020, the Supreme Court is scheduled to
hear oral argument in the latest dispute over the PLRA, Lomax v. Ortiz-Marquez. The case concerns the
scope of the PLRA’s “three strikes” provision, which aims to limit meritless litigation by prisoners. This
Sidebar outlines the applicable legal regime, explaining how the PLRA modified the law related to
prisoner litigation. The Sidebar then summarizes the litigation in Lomax and presents key considerations
for Congress.
Statutory Background
Proceedings In Forma Pauperis
By statute, a person who files suit in federal court must general y prepay a filing fee, which currently
totals $400 for most civil actions brought in district court. Charging filing fees is understood to benefit the
judiciary not only by helping to cover the courts’ operating costs, but also by deterring excessive
litigation: if litigants must pay hundreds of dollars every time they file a lawsuit, they may be less
inclined to initiate time- and resource-consuming litigation with a low probability of success.
To ensure that filing fees do not prevent indigent litigants from bringing potential y meritorious lawsuits,
in the late 19th century Congress enacted legislation al owing litigants who submit an affidavit of
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indigence to proceed in forma pauperis (IFP) and commence suit without prepaying court fees. However,
as the Supreme Court has noted, “a litigant whose filing fees and court costs are assumed by the public,
unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or
repetitive lawsuits.” The federal IFP statute thus contains provisions designed to discourage frivolous
litigation and reduce the burden on the courts, such as a requirement that courts dismiss certain IFP suits
that are futile or lack merit.
The PLRA and Indigent Prisoner Litigation
Prior to 1996, prisoners proceeding IFP were subject to the same rules as other indigent litigants. That
year, however, Congress enacted the PLRA based on a finding that “prisoner suits . . . represented a
disproportionate share of federal filings.” The PLRA contains multiple provisions general y intended to
“reduce the quantity and improve the quality of prisoner suits.” For example, the PLRA limits the scope
of prospective relief available in lawsuits concerning prison conditions, meaning that courts may only
grant an injunction related to prison conditions if it “is narrowly drawn, extends no further than necessary
. . . , and is the least intrusive means necessary to correct the violation of [a] Federal right.” The statute
also contains an exhaustion provision that bars prisoners from filing suits related to prison conditions
before seeking al available remedies through the prison grievance system. Furthermore, the PLRA
requires courts to dismiss any action related to prison conditions or any prisoner complaint against a
governmental entity if the complaint is frivolous or malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune.
The PLRA also specifical y modifies the IFP requirements for prisoners. First, the PLRA provides that
prisoners proceeding IFP—unlike non-prisoners—general y remain liable for the full filing fee. While
indigent prisoners need not prepay the full fee before pursuing litigation, they must pay the fee in
instal ments based on the amount of funds in their prison trust account. A prisoner with no available assets
can bring suit without paying a partial filing fee, but may be required to make instal ment payments later
if funds become available. (The courts of appeals have split on the question of whether a prisoner remains
liable for fees assessed under the PLRA after release.) In addition, as relevant in Lomax, 28 U.S.C.
§ 1915(g) (known as the PLRA’s three strikes provision) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding
under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained
in any facility, brought an action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.
Each time a prisoner has a suit dismissed on one of the enumerated grounds, the dismissal counts as a
“strike.” Prisoners who incur three strikes ordinarily may stil file lawsuits, but must either prepay the full
filing fee or demonstrate that they are in imminent danger of serious physical injury.

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Lomax v. Ortiz-Marquez
The question presented in Lomax is whether all dismissals for failure to state a claim constitute strikes
under the PLRA. As background, a court faced with a defective complaint may dismiss the complaint
either with or without prejudice. If a complaint suffers from potential y curable defects, the court may
dismiss without prejudice, al owing the plaintiff to remedy the issues and attempt to bring the same claims
again in a new complaint. For example, under Heck v. Humphrey, a person may not sue for damages for
unconstitutional conviction or imprisonment unless the chal enged conviction has already been reversed
on appeal or otherwise invalidated. If a person whose conviction has not been invalidated brings a civil
suit chal enging the conviction, the court wil general y dismiss w ithout prejudice under Heck, leaving the
plaintiff the opportunity to bring suit again if and when the conviction is overturned. By contrast, if a
complaint suffers from incurable defects or a plaintiff repeatedly fails to remedy potential y curable
defects, the court may dismiss with prejudice. For instance, dismissal with prejudice may be appropriate if
a complaint is frivolous—containing al egations that are “clearly baseless,” “fanciful,” or “delusional”—
and could not be “remedied through more specific pleading.” Dismissal with prejudice bars the plaintiff
from attempting to bring the same claims again in the future.
While there appears to be no dispute that dismissal with prejudice for failure to state a claim counts as a
strike under the PLRA, the courts of appeals have split on whether dismissal without prejudice for failure
to state a claim counts as a strike.
Petitioner Arthur James Lomax is incarcerated in Colorado. In 2018, he sued several corrections officials,
raising constitutional claims arising from his expulsion from a sex offender treatment program. The
district court ordered Lomax to show cause why he should not be required to prepay the full filing fee
because he previously had three suits dismissed for failure to state a claim. One of Lomax’s prior
complaints was dismissed with prejudice; Lomax did not contest that that dismissal was a strike.
However, his two other complaints were dismissed without prejudice for failure to state a claim under
Heck. Lomax contended that the two dismissals without prejudice did not constitute strikes. The district
court disagreed and denied Lomax leave to proceed IFP. On appeal, the U.S. Court of Appeals for the
Tenth Circuit (Tenth Circuit) affirmed the denial. Lomax also argued before both the district court and the
Tenth Circuit that he was eligible for IFP status because he faced imminent danger of serious physical
injury. However, both courts rejected that argument, and the Supreme Court granted certiorari only as to
the question of whether “a dismissal without prejudice for failure to state a claim count[s] as a strike”
under the three strikes provision.
Before the Supreme Court, Lomax argues that his two complaints that were dismissed without prejudice
for failure to state a claim do not count as strikes because the PLRA’s three strikes provision mirrors the
language in Federal Rule of Civil Procedure 12(b)(6) governing “failure to state a claim upon which relief
can be granted.” Courts presume that a dismissal under Rule 12(b)(6) is with prejudice unless the issuing
court specifies otherwise. Likewise, Lomax contends, Congress’s use of the phrase “fails to state a claim
upon which relief may be granted” in the PLRA implicitly applies only to the default form of dismissal—
dismissal with prejudice.
Lomax also asserts that the PLRA’s broader structure supports his position because the other grounds for
dismissal that count as strikes “apply to actions that cannot succeed,” rather than complaints suffering
from curable defects. Similarly, Lomax claims that the PLRA’s legislative history supports his position
because the Congress that enacted the PLRA “sought to weed out and deter only truly meritless and
frivolous actions,” rather than “potential y ‘legitimate claims’ that were dismissed without prejudice
because of some pleading error or procedural barrier.” Lomax argues that interpreting the three strikes
provision to include dismissals without prejudice would improperly restrict prisoners’ right of access to
federal court by imposing strikes for legitimate claims that suffer from curable flaws. He also contends

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that the Court should not adopt such an interpretation because it would raise constitutional questions
involving the right of access to court by prisoners and indigent litigants.
The respondent corrections officials and the United States as amicus curiae assert that dismissal for
failure to state a claim is a strike, whether the dismissal is with or without prejudice. The corrections
officials argue that the plain meaning of the word “dismissed” as used in the three strikes provision
embraces al dismissals, whether with or without prejudice. They note that Congress has enacted other
statutes that apply only to dismissals with (or without) prejudice, and assert that the Court should not
imply such a limitation if Congress did not expressly impose it in the PLRA. The corrections officials also
contend that the PLRA’s legislative history supports their interpretation of the statute because the
Congress that enacted the PLRA hoped to relieve courts from “the crushing burden of . . . frivolous suits.”
Final y, they argue that their interpretation of the three strikes provision would not unduly limit prisoners’
access to court, either as a matter of public policy or constitutional law.
Possible Outcomes and Considerations for Congress
As noted above, the federal appel ate courts have split with respect to the issue presented in Lomax. The
Third and Fourth Circuits have construed the three strikes provision to encompass dismissals for failure to
state a claim only if entered with prejudice. Those courts reasoned that a dismissal for failure to state a
claim under Rule 12(b)(6) is presumed to be rendered with prejudice, so “a dismissal without prejudice
for failure to state a claim does not fal within the plain and unambiguous meaning” of the three strikes
provision. By contrast, a majority of appel ate courts that have considered the issue held that dismissal
without prejudice counts as a strike under the PLRA. Those courts general y relied on the fact that the text
of the three strikes provision does not expressly limit its effects to dismissals without prejudice.
In deciding Lomax, the Supreme Court may consider whether the three strikes provision—particularly an
interpretation of the provision that would place more stringent limits on prisoner litigation—raises
constitutional concerns. However, federal courts have general y recognized few constitutional constraints
on civil filing fees. The Supreme Court has emphasized that “a constitutional requirement to waive court
fees in civil cases is the exception, not the general rule,” and exists only when a “fundamental interest” is
at stake. Moreover, while the Supreme Court has not previously considered the constitutionality of the
three strikes provision, numerous federal appel ate courts have concluded the provision is constitutional.
To the extent Lomax hinges on a pure question of statutory interpretation, Congress could amend the
PLRA (before or after the Supreme Court rules) to clarify how the three strikes provision should apply.
The parties’ arguments in Lomax invoking competing canons of statutory interpretation—such as
presumptions about the three strikes provision’s plain meaning or the invitation to construe the word
“dismissed” in light of its meaning in Rule 12(b)(6)—suggest key considerations Congress could take
into account if it sought to amend the statute. Ultimately, though, the interpretive arguments that both
sides raise with respect to the three strikes provision could be overcome with express language specifying
whether a dismissal without prejudice constitutes a strike.
Lomax takes place against a background of broader policy debates about the PLRA. Some commentators
object that the PLRA places too many limits on prisoner litigation and contend that Congress should
reform the law or repeal the statute altogether. Others counter that prisoners continue to file high volumes
of meritless cases and suggest that ongoing burden may warrant more rigorous controls on prisoner
litigation. While the Supreme Court has not previously taken up the issue presented in Lomax, it has
considered the PLRA in other contexts, with varying results for each side of the policy debate. The Court
previously invoked the three strikes provision’s plain text and the statute’s purpose “to filter out the bad
claims and facilitate consideration of the good” in holding that a covered dismissal counts as a strike even
while any appeal from the dismissal remains pending. That decision disagreed with a majority of courts of
appeals and adopted an interpretation of the three strikes provision that imposed more stringent limits on

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prisoner litigation. On the other hand, the Supreme Court has invalidated court rules requiring prisoners to
demonstrate compliance with the PLRA’s exhaustion requirement in their complaints, explaining that
“the policy and purpose underlying the PLRA” did not justify “adopting different and more onerous
pleading rules” than those required by the statute. The differing results in these cases and the ongoing
disputes over the meaning of the PLRA may suggest a role for Congress in resolving many of the legal
and policy debates surrounding prisoner litigation.
The Supreme Court wil likely issue a decision in Lomax by June 2020.

Author Information

Joanna R. Lampe

Legislative Attorney

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