Blakely v. Wards

• Decision Date: 22 October 2013
• Docket Number: No. 11–6945.,11–6945.
• Parties: James G. BLAKELY, a/k/a Jimmy G. Blakely, Plaintiff–Appellant, v. Robert WARDS, Regional Director; Mr. David M. Tatarsky, General Counsel Attorney; A. Padula, Warden; M. Bell, Associate Warden; Major Dean; Nurse MacDonald, Head Nurse at Lee Correctional; J. Livington, Librarian; A. Smith, Business Office Manager at Lee Correctional Institution; Chaplain T. Evans; Chaplain Cain; Ms. Simon, Mailroom Supervisor at Lee Correctional; Lt. June, Wateree Corr; Mr. Bainor, Medical; Mr. Biddinger, Cafeteria Supervisor; Ms. Taylor, Canteen Supervisor; Ms. Hancock, Commissionary Manager; Jon Ozmint, Director, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

738 F.3d 607

James G. BLAKELY, a/k/a Jimmy G. Blakely, Plaintiff–Appellant,

v.Robert WARDS, Regional Director; Mr. David M. Tatarsky, General Counsel Attorney; A. Padula, Warden; M. Bell, Associate Warden; Major Dean; Nurse MacDonald, Head Nurse at Lee Correctional; J. Livington, Librarian; A. Smith, Business Office Manager at Lee Correctional Institution; Chaplain T. Evans; Chaplain Cain; Ms. Simon, Mailroom Supervisor at Lee Correctional; Lt. June, Wateree Corr; Mr. Bainor, Medical; Mr. Biddinger, Cafeteria Supervisor; Ms. Taylor, Canteen Supervisor; Ms. Hancock, Commissionary Manager; Jon Ozmint, Director, Defendants–Appellees.

No. 11–6945.

United States Court of Appeals, Fourth Circuit.

Argued: May 16, 2013.

Decided: Oct. 21, 2013.

Amended: Oct. 22, 2013.

ARGUED:Nilam Ajit Sanghvi, Georgetown University Law Center, Washington, D.C., for Appellant. Daniel Roy Settana, Jr., McKay, Cauthen, Settana and Stubley, P.A., Columbia, South Carolina, for Appellees. ON BRIEF:Steven H. Goldblatt, Director, Doug Keller, Supervising Attorney, Jina Moon, Student Counsel, Matthew T. Vaughan, Student Counsel, Georgetown University Law Center, Washington, D.C., for Appellant. Erin Farrell Farthing, McKay, Cauthen, Settana and Stubley, P.A., Columbia, South Carolina, for Appellees.

Before WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, DIAZ, FLOYD, and THACKER, Circuit Judges.

Motion for reconsideration denied by published opinion. Judge WYNN wrote the majority opinion, in which Judges WILKINSON, NIEMEYER, SHEDD, AGEE, KEENAN, DIAZ, and FLOYD joined. Judge WILKINSON wrote a separate concurring opinion, in which Judges NIEMEYER, KEENAN, and DIAZ joined. Judge DUNCAN wrote a separate opinion concurring in the judgment. Judge MOTZ wrote a dissenting opinion, in which Judges KING, DAVIS, and THACKER joined, and in which Judge GREGORY joined as to Part I. Judge GREGORY wrote a separate dissenting opinion.

ON REHEARING EN BANC

WYNN, Circuit Judge:

With the Prisoner Litigation Reform Act (“PLRA”), Congress sought to reduce the number of frivolous lawsuits flooding the federal courts. Congress did so in part by enacting 28 U.S.C. § 1915(g), a “three-strikes” statute providing that if a prisoner has already had three cases dismissed as frivolous, malicious, or for failure to state a claim for which relief may be granted, the prisoner generally may not proceed in forma pauperis but rather must pay up-front all filing fees for his subsequent suits.

Plaintiff James G. Blakely challenges this Court's denial of his attempt to proceed in forma pauperis on appeal. He contends that his prior actions dismissed as “frivolous, malicious, or fail[ing] to state a claim” cannot count as strikes under Section 1915(g) because these dismissals occurred at summary judgment. But neither the statute itself nor precedent supports Blakely's contention. Rather, the fact that an action was dismissed as frivolous, malicious, or failing to state a claim, and not the case's procedural posture at dismissal, determines whether the dismissal constitutes a strike under Section 1915(g). Because Blakely has had more than three prior cases dismissed expressly as frivolous, malicious, or failing to state a claim, we deny his motion for reconsideration.

I.

Blakely, a prisoner in a South Carolina correctional institution, has pursued numerous lawsuits in federal and state courts, including multiple appeals in this Court. In 2010, Blakely filed the underlying Section 1983 action against Defendants, including South Carolina officials such as counsel for the Department of Corrections and “Lee Correctional Institution” employees such as the facility's librarian and chaplain. Blakely alleged various constitutional rights violations.

Defendants removed the case from state court to federal court. A magistrate judge issued a Report and Recommendation deeming Blakely's claims meritless. The district court agreed, granted summary judgment in Defendants' favor, and dismissed the case. Blakely appealed to this Court.

To avoid having to pay the necessary appellate filing fees up front, Blakely sought to proceed in forma pauperis. This Court initially denied Blakely's application to proceed in forma pauperis. After Blakely moved for reconsideration, this Court assigned Blakely counsel and directed the parties to brief whether certain previously-dismissed suits constitute strikes under the PLRA such that Blakely is barred from proceeding in forma pauperis on appeal. The merits of the underlying summary judgment are, therefore, not currently before us. Rather, we consider only whether Blakely should be allowed to proceed in forma pauperis on appeal.¹

II.

A.

Several of Blakely's previously-dismissed suits were terminated at summary judgment. Blakely contends that such summary judgment dismissals, as a matter of law, cannot constitute strikes under 28 U.S.C. § 1915(g). We review this question of law de novo. Tolbert v. Stevenson, 635 F.3d 646, 649 (4th Cir.2011).

The section of the PLRA at issue here, known as the three-strikes provision, states:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this [in forma pauperis] 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.28 U.S.C. § 1915(g) (emphasis added). In other words, if a prisoner has had three prior cases dismissed as frivolous, malicious, or failing to state a claim for which relief may be granted, the prisoner generally must pay up-front all filing fees for his subsequent suits.

Here, Blakely has had more than three prior cases terminated at summary judgment expressly as frivolous, malicious, or failing to state a claim. At the heart of this appeal is the meaning of the word “dismiss” and whether a summary judgment disposing of an action as frivolous, malicious, or failing to state a claim “dismisses” the action such that it constitutes a strike under Section 1915(g).

To interpret statutory language such as Section 1915(g)'s “dismissed,” we begin our analysis with the plain language. Salomon Forex, Inc. v. Tauber, 8 F.3d 966, 975 (4th Cir.1993). “In arriving at the plain meaning, we ... assume that the legislature used words that meant what it intended; that all words had a purpose and were meant to be read consistently; and that the statute's true meaning provides a rational response to the relevant situation.” Id.

In beginning with the language itself, “[w]e customarily turn to dictionaries for help in determining whether a word in a statute has a plain or common meaning.” Nat'l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 289 (4th Cir.1998). Doing so here reveals that “dismiss” means “to terminate (an action or claim) without further hearing, esp. before the trial of the issues involved.” Black's Law Dictionary 482 (7th ed.1999). See also, e.g., The American Heritage Dictionary 520 (4th ed.2009) (“To put (a claim or action) out of court without further hearing.”).

Summary judgments can do precisely that: They can terminate cases without a trial. See Black's Law Dictionary 1573 (9th ed.2009) (“A judgment granted on a claim or defense about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law.... This procedural device allows for the speedy disposition of a controversy without the need for trial.”). As this Court has noted, the purpose of “[s]ummary judgment is to avoid a useless trial. It is a device to make possible the prompt disposition of controversies ... if in essence there is no real dispute as to the salient facts.” Bland v. Norfolk & S. R.R. Co., 406 F.2d 863, 866 (4th Cir.1969).

Not surprisingly, then, courts—including the Supreme Court, this Court, and the D.C. Circuit—routinely call summary judgments terminating actions dismissals. See, e.g., Bell v. Thompson, 545 U.S. 794, 798, 125 S.Ct. 2825, 162 L.Ed.2d 693 (2005) (characterizing summary judgment as having “dismissed the habeas petition”); Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 124, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982) (stating that “the District Court granted petitioners' motion for summary judgment dismissing respondent's complaint”); Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 465, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (referring to summary judgment as “summary judgment of dismissal”); Tolbert, 635 F.3d at 654 (noting that “claims against certain defendants were dismissed upon a motion for judgment on the pleadings, while claims against other defendants were later dismissed on summary judgment”); Thompson v. Drug Enforcement Admin., 492 F.3d 428, 438 (D.C.Cir.2007) (characterizing summary judgment as a “procedural mechanism” through which a “court dismisses the complaint”).

Even Blakely refers to the summary judgments at issue here as dismissals. In his appellate brief, Blakely argues, for example, that his “prior cases that were dismissed on summary judgment are not strikes” and that “a case dismissed on summary judgment is not a strike....” Appellant's Br. at i.

There is some argument, particularly in the legal academy, that summary judgments should not be called dismissals. See, e.g., Bradley Scott Shannon, A Summary Judgment Is Not a Dismissal!, 56 Drake L.Rev. 1 (2007). But nothing before us indicates that Congress had any such distinction in mind when it drafted Section 1915(g).

Beyond the word “dismiss,” looking at Section 1915 as a whole convinces us that Congress did not seek to curtail courts' authority to dispose of frivolous, malicious, or failed claims at summary judgment by using the word “dismiss.” As the...