Gonzalez v. United States, 011222 FED8, 20-2824

Docket Nº20-2824
Opinion JudgeSTRAS, CIRCUIT JUDGE
Party NameGabriel Gonzalez Plaintiff - Appellant v. United States of America Defendant-Appellee
Judge PanelBefore SMITH, Chief Judge, GRUENDER and STRAS, Circuit Judges. GRUENDER, Circuit Judge, dissenting.
Case DateJanuary 12, 2022
CourtUnited States Courts of Appeals, United States Court of Appeals (8th Circuit)

Gabriel Gonzalez Plaintiff - Appellant

v.

United States of America Defendant-Appellee

No. 20-2824

United States Court of Appeals, Eighth Circuit

January 12, 2022

Submitted: September 24, 2021

Appeal from United States District Court for the Eastern District of Arkansas - Central

Before SMITH, Chief Judge, GRUENDER and STRAS, Circuit Judges.

STRAS, CIRCUIT JUDGE

Gabriel Gonzalez received more than he bargained for when his tort claim was dismissed. Not only did he lose the case, but the district court1 advised him that he had collected a "strike" under the Prison Litigation Reform Act. Now he challenges

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the called strike, which can harm him, if at all, only in the future. For that reason, we lack jurisdiction over the appeal.

I.

Gonzalez, who is an inmate in federal prison, sued under the Federal Tort Claims Act after prison officials allegedly confiscated and destroyed some of his legal papers. Applying the PLRA, the district court dismissed the action because he had failed to state a claim. See 28 U.S.C. §§ 1915(e)(2), 1915A. Although Gonzalez appeals from "the [d]istrict [c]ourt's [j]udgment and [o]rder," all he addresses in his brief is a single sentence from the order saying that the "dismissal counts as a 'strike' within the meaning of 28 U.S.C. § 1915(g)."

Under the PLRA, a prisoner earns a strike for any action that is "dismissed on the ground[] that it is frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted." Id. § 1915(g). After three strikes, a litigant loses the right to sue without prepaying the filing fee. Id. § 1915(a), (g). Gonzalez would like us to overturn the strike, even if it cannot immediately impact him.

II.

Whether we have jurisdiction to consider Gonzalez's challenge is a purely legal question. See ABF Freight Sys., Inc. v. Int'l Bhd. of Teamsters, 645 F.3d 954, 958 (8th Cir. 2011). So are any interpretive questions under the PLRA. See Faulk v. Charrier, 262 F.3d 687, 703 (8th Cir. 2001) (explaining that "issues of statutory construction" are reviewed de novo). All signs, in other words, point to de-novo review. See Fourstar v. Garden City Grp., Inc., 875 F.3d 1147, 1150 (D.C. Cir. 2017) (Kavanaugh, J.).

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A.

The statutory question is who gets to make the call: the judges who individually dismiss each action or the judge who eventually has to decide whether a prisoner has tallied three strikes? The PLRA itself provides the answer.

Prisoners lose their eligibility for filing-fee relief, absent "imminent danger of serious physical injury," if they have, "on 3 or more prior occasions," brought actions that were "dismissed on the grounds that" they are "frivolous, malicious, or fail[] to state a claim upon which relief may be granted."[2] 28 U.S.C. § 1915(g). At first glance, it may appear that strikes can be assessed along the way, particularly given that the PLRA allows judges to screen prisoner complaints and dismiss any that are "frivolous or malicious" or that "fail to state a claim on which relief may be granted"-the same criteria for assessing a strike. Id. § 1915(e), 1915A.

After dismissing the complaint, the district court advised Gonzalez that he had earned a strike. So he gets one, right? In a word, no. Logically, only the "fourth or later" judge can determine whether a prisoner is trying to "bring a civil action" after having already done so on "three or more prior occasions." Simons v. Washington, 996 F.3d 350, 352 (6th Cir. 2021) (quoting 28 U.S.C. § 1915(g)). At that point, the judge evaluating a prisoner complaint is the only one who can look "backwards" and

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determine whether the first three actions were dismissed on one or more of the listed grounds. See id.; see also Hill v. Madison Cnty., Ill., 983 F.3d 904, 906 (7th Cir. 2020) ("[W]e have understood § 1915(g) to leave the effective decision to a later tribunal.").

So what does all of this mean for Gonzalez? At most, he has received a warning. See Simons, 996 F.3d at 353. The fourth or later judge, to whom the PLRA assigns the task, "must [still] independently evaluate" the dismissal, as well as any others, "to determine whether" he has collected three strikes. Fourstar, 875 F.3d at 1152. Gonzalez, for his part, remains free to argue that the dismissal does not count as a strike, regardless of what the district court told him. See id.

B.

This answer has jurisdictional consequences. If the final strike call has yet to be made, then Gonzalez faces no "certainly impending" injury. Pub. Water Supply Dist. No. 8 v. City of Kearney, 401 F.3d 930, 932 (8th Cir. 2005). Only when he files "3 or more" actions that have been "dismissed," leading some future judge to conclude that he is no longer eligible for relief from the "prepayment of fees," will the issue ripen into a justiciable controversy. See 28 U.S.C. § 1915(a), (g). Indeed, at this point, the record does not reveal how many lawsuits he has filed, much less how many of those might turn out to be strikes. And even if it did, there is still a possibility that the next one he files will involve an "imminent danger of serious physical injury," which will give him relief from the prepayment of fees no matter how many strikes he has accrued. Id. § 1915(g). In short, whether the called strike was correct is not fit for judicial decision because any hardship is "contingent [on] future events" that may never "occur." Texas v. United States, 523 U.S. 296, 300 (1998).

Although we lack jurisdiction on appeal, the situation was different before the district court. At that point, there was a live controversy because the court had...

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