Butler v. Department of Justice

• Decision Date: 26 June 2007
• Docket Number: No. 05-5171.,05-5171.
• Citation: 492 F.3d 440
• Parties: James A. BUTLER, Appellant v. DEPARTMENT OF JUSTICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

492 F.3d 440

James A. BUTLER, Appellant v. DEPARTMENT OF JUSTICE, Appellee.

No. 05-5171.

United States Court of Appeals, District of Columbia Circuit.

Argued January 19, 2007.

Decided June 26, 2007.

Appeal from the United States District Court for the District of Columbia, (No. 05cv00288).

Jamie W. Campbell, Student Counsel, argued the cause as amicus curiae in support of appellant. With her on the briefs were Steven H. Goldblatt, appointed by the court, and David J. Arkush, Supervising Attorney.

Alan Burch, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence and W. Mark Nebeker, Assistant U.S. Attorneys. Michael J. Ryan, Assistant U.S. Attorney, entered an appearance.

Before: TATEL, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge.

Appellant James A. Butler, a federal prisoner, seeks leave to file in forma pauperis ("IFP") on an appeal before this Court. He has on at least five prior occasions brought appeals before this Court that were dismissed for failure to prosecute. The question before us is whether those dismissals are strikes under the Prison Litigation Reform Act ("PLRA" or the "Act"). We hold that they are not, but nonetheless exercise our supervisory discretion to deny Butler IFP status.

I.

In 1996, Congress passed the Prison Litigation Reform Act, Pub.L. No. 104-134 §§ 801-10, 110 Stat. 1321 (1996), to "help bring relief to a civil justice system overburdened by frivolous prisoner lawsuits," 141 CONG. REC. S14408-01, *S14418 (daily ed. Sept. 27, 1995) (statement of Sen. Hatch), and to "reduce the number of nonmeritorious actions brought by prisoners for whom litigation was a costless pastime," Ibrahim v. District of Columbia, 208 F.3d 1032, 1036 (D.C.Cir.2000). The PLRA imposed several limitations on a prisoner's ability to file lawsuits and pursue appeals in federal courts. One of those limitations,¹ colloquially known as the "three strikes" provision, prohibits a prisoner from proceeding in forma pauperis if he has had three or more actions or appeals in federal courts dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faces imminent danger of serious physical harm. 28 U.S.C. § 1915(g).²

Butler, who is serving a life sentence, filed a claim under the Freedom of Information Act ("FOIA") in district court seeking records related to his conviction from the Executive Office of the United States Attorneys and moved for leave to file IFP. The district court denied his motion because it found that Butler had incurred at least three strikes under § 1915(g) and dismissed the case without prejudice to his refiling upon payment of the filing fee.

Butler appealed and filed a motion for leave to proceed IFP in this Court. We ordered the government to respond to his motion and to address whether Butler had incurred three strikes under § 1915(g). We also appointed amicus curiae to argue in support of Butler's position. The government responded by arguing that Butler had three appeals pending before this Court in which he was either proceeding or attempting to proceed IFP,³ and that we had dismissed for failure to prosecute at least five separate appeals⁴ in which he was proceeding IFP. The government argues that these five dismissals are strikes under § 1915(g) and that Butler is therefore barred from proceeding IFP in this appeal. Amicus asserts that dismissals for failure to prosecute are not strikes under § 1915(g) and urges us to allow Butler to proceed IFP. Because Butler does not claim that he is "under imminent danger of serious physical injury," the only question before us is whether a dismissal for failure to prosecute an appeal is a strike, and if not, whether we should nevertheless exercise our discretion to deny Butler IFP status.⁵

II.

In determining whether a dismissal for failure to prosecute an appeal is a strike under the PLRA, we begin, as we must, with the language of the statute. United States v. Braxtonbrown-Smith, 278 F.3d 1348, 1352 (D.C.Cir.2002) ("In construing a statute, the court begins with the plain language of the statute."). By its own terms, the PLRA counts as a strike only an action or appeal that is "dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(g). A dismissal for failure to prosecute is clearly not a dismissal for "failure to state a claim on which relief may be granted"—a phrase that tracks the language of Federal Rule of Civil Procedure 12(b)(6) and is not implicated here. Nor is it a dismissal "on the grounds that it is frivolous," a dismissal based on the utter lack of merit of an action or appeal. See Tafari v. Hues, 473 F.3d 440, 442 (2d Cir.2007) ("A frivolous action advances `inarguable legal conclusion[s]' or `fanciful factual allegation[s].' Thus, the term `frivolous' refers to the ultimate merits of the case.") (alterations original, citation omitted). By contrast, a dismissal for failure to prosecute does not rest on the merits of a claim.⁶ Mathes v. Comm'r of Internal Revenue, 788 F.2d 33, 35 (D.C.Cir.1986) ("The substantive merits of a claim are of course irrelevant to the propriety of a dismissal for failure to prosecute . . . ."); see also Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir.2002) ("Public policy favors disposition of cases on the merits. Thus, this factor weighs against dismissal [for failure to prosecute]."); Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.2002) (noting the strong predisposition to resolve cases on the merits rather than dismissing for failure to prosecute).

That leaves us with the question whether a dismissal for failure to prosecute fits appropriately within the statutory category of a dismissal "on the ground[] that it is . . . malicious."⁷ We hold that it does not. "A case is malicious if it was filed with the intention or desire to harm another." Tafari, 473 F.3d at 442 (parenthetically quoting Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.2005)). Although it is possible that an action or an appeal dismissed for failure to prosecute may have been filed with the sole intent to harm another, that need not be the case. As amicus correctly points out, there are non-malicious reasons why a prisoner may fail to prosecute a matter, including transfer to another facility and sickness. See Amicus Reply Br. at 18.

The government nonetheless urges us to exercise our discretionary authority to create a per se rule that would count all dismissals for failure to prosecute as strikes. Oral Arg. at 42-46. In Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), the Supreme Court rejected a similar proposal. At the time, the in forma pauperis statute authorized "federal courts to dismiss a claim filed in forma pauperis `if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.'" 490 U.S. at 324, 109 S.Ct. 1827 (quoting 28 U.S.C. § 1915(d)(1988), amended by Pub.L. No. 104-134 § 804(a)(2), 110 Stat. 1321 (1996)). Several prison officials petitioned the Supreme Court to adopt "a per se reading" of the in forma pauperis statute, categorizing all complaints dismissed for failure to state a claim under Rule 12(b)(6) as "frivolous" under § 1915(d). Id. at 325, 109 S.Ct. 1827. The Court acknowledged that there were good policy reasons behind adopting the petitioners' approach, but nonetheless refused to adopt it because the Court's "role . . . is not to make policy, but to interpret a statute," and "as a matter of statutory construction [the petitioners' proposal] is untenable." Id. at 326, 109 S.Ct. 1827. The Court therefore concluded that complaints "filed in forma pauperis [are] not automatically frivolous within the meaning of § 1915(d) because [they] fail[ ] to state a claim." Id. at 331, 109 S.Ct. 1827.

The government's proposal here suffers from a similar defect. Had Congress wanted to include dismissals for failure to prosecute among the strikes listed in § 1915(g), it could have done so. See, e.g., Tafari, 473 F.3d at 443 ("The PLRA makes clear that Congress was aware of, and intended to differentiate between, particular bases for dismissal."). If we were to adopt the government's approach, we would be effectively writing another category of strikes into the PLRA. We have neither the authority nor inclination to substitute our policy judgment for that of Congress. See Keene Corp. v. United States, 508 U.S. 200, 208, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (courts have a "duty to refrain from reading a phrase into the statute when Congress has left it out"). Such an expansion of the statute would not even advance the purpose of the PLRA, which was "designed to stem the tide of egregiously meritless lawsuits." Tafari, 473 F.3d at 443 (emphasis added). Each of the three categories of strikes in the statute involves dispositions that look to the merits of the suit. As we have already noted, a dismissal for failure to prosecute is made without regard to the merits of the claim. Rather, it is a mechanism whereby courts may protect their power to ensure compliance with their rules and orders. See D.C.Cir. Rule 38 ("When any party to a proceeding before this court . . . fails to comply with the FRAP, these rules, or an order of this court . . . the court may . . . impose appropriate sanctions . . . includ[ing] dismissal for failure to prosecute"); 18A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4440 (2d ed.2002) (noting that the purpose of this "strong sanction [is] to enforce compliance with proper procedure").

We recognize that a prisoner who files repeated actions or appeals only to allow them to languish can present a burden to the courts similar to the problems addressed by the three strikes provision of the PLRA. A prisoner "for whom litigation...