Supreme Court Rules All Dismissals Count as Strike Under Prison Litigation Reform Act

In Lomax v. Ortiz-Marquez, 590 U. S. ____ (2020), the U.S. Supreme Court held that indigent prisoners generally get no more than three attempts at filing lawsuits in forma pauperis — without first paying filing fees — regardless of whether those suits were dismissed with or without prejudice. The Court’s decision was unanimous.

Facts of the Case

The Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule. 28 U. S. C. §1915(g) generally prevents a prisoner from bringing suit in forma pauperis (IFP)—that is, without first paying the filing fee—if he has had three or more prior suits “dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.”

Petitioner Arthur Lomax, an inmate in a Colorado prison, filed this suit against prison officials to challenge his expulsion from the facility’s sex-offender treatment program. He also moved for IFP status, but he had already brought three unsuccessful legal actions during his time in prison. If the dispositions of those cases qualify as strikes under Section 1915(g), Lomax may not now proceed IFP. The lower courts concluded that they did, rejecting Lomax’s argument that two of the dismissals should not count as strikes because they were without prejudice.

Court’s Decision

The Supreme Court unanimously agreed that a suit dismissed for failure to state a claim counts as a strike when the dismissal was without prejudice. “The text of the PLRA’s three-strikes provision makes this case an easy call,” Justice Elena Kagan wrote. “A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice. We therefore affirm the judgment below.”

According to the Court, the decision rested largely on text of the PLRA. “This case begins, and pretty much ends, with the text of Section 1915(g),” Justice Kagan wrote. She went on to explain that the provision’s “broad language” covers all dismissals for failure to state a claim, whether issued with or without prejudice to a plaintiff’s ability to reassert his claim in a later action. Justice Kagan further explained:

It applies to those issued both with and without prejudice to a plaintiff’s ability to reassert his claim in a later action. A strike call under Section 1915(g) thus hinges exclusively on the basis for the dismissal, regardless of the decision’s prejudicial effect. To reach the opposite result—counting prejudicial orders alone as strikes—we would have to read the simple word “dismissed” in Section 1915(g) as “dismissed with prejudice.” But this Court may not narrow a provision’s reach by inserting words Congress chose to omit.

In support of the Court’s decision, Justice Kagan also noted that reading the word “dismissed” in Section 1915(g) as “dismissed with prejudice” would introduce inconsistencies into the PLRA, which has three other provisions mentioning “dismiss[als]” for “fail[ure] to state a claim.” Those provisions do not deprive courts of the ability to dismiss suits without prejudice.

“The broad statutory language—on its face covering dismissals both with and without prejudice— tracks courts’ ordinary authority to decide whether a dismissal for failure to state a claim should have preclusive effect,” Justice Kagan wrote. “So reading the PLRA’s three-strikes rule to apply only to dismissals with prejudice would introduce inconsistencies into the statute. The identical phrase would then bear different meanings in provisions almost next-door to each other.”