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In the context of 28 U.S.C.S. § 1915(g), a dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.
The Prison Litigation Reform Act of 1995 (PLRA) established the “three-strikes rule,” a rule which prevented a prisoner from bringing suit in forma pauperis (IFP) if s/he has had three or more prior suits “dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted." 28 U.S.C. §1915(g). Petitioner Arthur Lomax, an inmate in a Colorado prison, filed the present suit against respondent 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. The district court denied petitioner’s motion for IFP status, finding that all three of his prior suits had been dismissed for failure to state a claim – one of the grounds specified in Section 1915(g). On appeal, petitioner argued that two of those dismissals should not count as strikes because they were without prejudice, thus allowing him to file a later suit on the same claim. The Court of Appeals for the Tenth Circuit rejected that argument. Relying on Circuit precedent, the Court held it “immaterial to the strikes analysis” whether a dismissal was with or without prejudice. Petitioner appealed.
Should a dismissal for failure to state a claim, whether the dismissal was with or without prejudice, be counted as a strike under the 28 U.S.C. §1915(g)?
The Court held that a dismissal of a suit for failure to state a claim was counted as a strike under 28 U.S.C.S. § 1915(g) whether or not the dismissal was with prejudice because, under § 1915(g), a prisoner accrued a strike for any action dismissed on the ground that it failed to state a claim upon which relief may be granted, and that broad language covered all such dismissals – it applied to those issued both with and without prejudice to a plaintiff’s ability to reassert his claim in a later action. According to the Court, a strike-call under § 1915(g) thus hinged exclusively on the basis for the dismissal, regardless of the decision’s prejudicial effect. Accordingly, the judgment of the Court of Appeals was affirmed.