McLean v. U.S.

• Decision Date: 21 May 2009
• Docket Number: No. 06-7784.,06-7784.
• Citation: 566 F.3d 391
• Parties: Quentin McLEAN, Plaintiff-Appellant, v. UNITED STATES of America; United States Congress, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

566 F.3d 391

Quentin McLEAN, Plaintiff-Appellant, v. UNITED STATES of America; United States Congress, Defendants-Appellees.

No. 06-7784.

United States Court of Appeals, Fourth Circuit.

Argued: September 23, 2008.

Decided: May 21, 2009.

ARGUED:

Charlotte Garden, Student Counsel, Georgetown University Law Center, Appellate Litigation Program, Washington, D.C., for Appellant. Joel Eric Wilson, Office of the United States Attorney, Norfolk, Virginia, for Appellees.

ON BRIEF:

Steven H. Goldblatt, Director, Colin D. Forbes, Student Counsel, Benjamin D. Schuman, Student Counsel, Georgetown University Law Center, Appellate Litigation Program, Washington, D.C., for Appellant. Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellees.

Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge MICHAEL wrote the opinion, in which Judge GREGORY joined. Judge SHEDD wrote a separate opinion concurring in part and dissenting in part.

OPINION

MICHAEL, Circuit Judge:

The Prison Litigation Reform Act of 1996 (PLRA or Act), Pub.L. No. 104-134, 110 Stat. 1321-71 (1996), limits the ability of prisoners to file civil actions without prepayment of filing fees. When a prisoner has previously filed at least three actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, the Act's "three strikes" provision requires that the prisoner demonstrate imminent danger of serious physical injury in order to proceed without prepayment of fees. 28 U.S.C. § 1915(g). The main issue before us today is whether a dismissal without prejudice for failure to state a claim counts as a strike under § 1915(g). We hold that it does not. Four of the six previous actions filed by Quentin McLean, the plaintiff-appellant in this case, were dismissed without prejudice for failure to state a claim. As a result, McLean is not a three-striker, and he may proceed in this appeal without the prepayment of filing fees. His substantive claim must be rejected, however. McLean attempts to sue the United States and the United States Congress, asserting that a statute of limitations provision in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214 (1996), is retroactive and therefore unconstitutional. Because the United States and its Congress are immune from such a suit, we affirm the district court's dismissal of McLean's complaint.

I.

The PLRA requires a district court to engage in a preliminary screening of any complaint in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a) (2000). The court must identify "cognizable claims or dismiss the complaint, or any portion [thereof, that] is frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1) (2000). The "three strikes" provision of the PLRA, § 1915(g), denies in forma pauperis (IFP) status to any prisoner who:

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) (2000).

On August 3, 2006, McLean, a state prisoner in Virginia, filed a pro se action under 42 U.S.C. § 1983 against the United States and the United States Congress in the Eastern District of Virginia. He challenged as retroactive, and therefore unconstitutional, § 2244(d) of AEDPA, which imposes a statute of limitations on a state prisoner seeking to file a habeas corpus petition in federal court. See 28 U.S.C. § 2244(d). On the same day, McLean filed a motion for leave to proceed IFP. The district court proceeded directly to the preliminary screening of McLean's complaint as required by § 1915A(a) and dismissed it for failure to state a claim. McLean v. United States, No. 2:06-cv-00447 (E.D.Va. Sept. 12, 2006). The court concluded that McLean's motion to proceed IFP was moot in light of the dismissal under § 1915A.

After filing a notice of appeal, McLean filed a motion in this court to proceed IFP. Because of McLean's prisoner status our clerk's office treated his IFP motion as moot and required him to file a separate application—on our form—for leave to proceed without prepayment of fees in accordance with the PLRA.

The PLRA application form required McLean to state whether he had, while incarcerated, filed three actions or appeals that were dismissed as frivolous or malicious or for failure to state a claim. McLean responded in the affirmative and, as required, listed the names and docket information for five such actions. The PLRA application form then instructed McLean to state "facts in support of any claim" that he was "under imminent danger of serious physical injury." Appellant's Application for Leave to Proceed Without Prepayment of Filing Fees 1, No. 06-7784 (4th Cir. Nov. 16, 2006). McLean responded:

My continue [sic] incarceration will subject me to psychological turmoil, worriation [sic], disturbances with thoughts — my deteriorating healthcare problems inadequately treated, exposures to unhealthy environment repeated government employees [sic] corruption and grown hate againts [sic] me, and loss of equality and rights of men Art. 1 sec. 1.

Id.

Once McLean's PLRA application was filed, the clerk entered an order conditionally granting him leave to proceed without full prepayment of fees. The order stated that it was "subject to rescission or revision at any time should the court determine that appellant has had three cases dismissed as frivolous, malicious, or for failure to state a claim and appellant is not under imminent danger of serious physical injury." McLean v. United States, No. 06-7784 (4th Cir. Nov.29, 2006) (order conditionally granting appellant's motion for leave to proceed without prepayment of filing fees).

A review of McLean's litigation history reveals that while incarcerated in Virginia, he had filed six non-habeas actions that were dismissed on grounds that might qualify them as strikes under § 1915(g). Specifically, all six actions were dismissed for failure to state a claim upon which relief can be granted. Four were dismissed without prejudice and the remaining two were simply dismissed, with one order noting that the dismissal counted as a strike for PLRA purposes.¹

II.

McLean's present appeal challenges the dismissal of his § 1983 action contesting the enactment of AEDPA's statute of limitations. We reach the merits of his appeal only if he is eligible to proceed without prepayment of fees under § 1915 (the IFP statute). To resolve the eligibility issue, we must determine whether he has fewer than three prior dismissals that count as strikes or, if not, whether he is in imminent danger of serious physical injury. The determination of whether McLean is a three-striker under § 1915(g) turns on whether a dismissal without prejudice for failure to state a claim counts as a strike. We conclude for the following reasons that such a dismissal is not a strike.

A.

Section 1915(g) includes in its list of strikes an action or appeal "that was dismissed on the grounds that it ... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(g). In interpreting this provision, we must first determine whether its language "has a plain and unambiguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341, 117 S.Ct. 843. "Our inquiry must cease if the statutory language is unambiguous and `the statutory scheme is coherent and consistent.'" Id. at 340, 117 S.Ct. 843 (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)).

Our task here is to determine whether Congress intended an action or appeal "that was dismissed on the grounds that it ... fails to state a claim upon which relief may be granted" to count as a strike under 28 U.S.C. § 1915(g) if that dismissal was specifically designated to be "without prejudice." The language "fails to state a claim upon which relief may be granted" in § 1915(g) closely tracks the language of Federal Rule of Civil Procedure 12(b)(6). Compare Fed.R.Civ.P. 12(b)(6) (listing "failure to state a claim upon which relief can be granted" as grounds for dismissal). When Congress directly incorporates language with an established legal meaning into a statute, we may infer that Congress intended the language to take on its established meaning. United States v. Langley, 62 F.3d 602, 605 (4th Cir.1995) ("It is firmly entrenched that Congress is presumed to enact legislation with knowledge of the law; that is with the knowledge of the interpretation that courts have given to an existing statute."); see also Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) ("We assume that Congress is aware of existing law when it passes legislation.").

When the word "dismissed" is coupled with the words "[for] fail[ure] to state a claim upon which relief may be granted," the complete phrase has a well-established legal meaning. Courts have held that, unless otherwise specified, a dismissal for failure to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with prejudice. See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) ("The dismissal for failure to state a claim under Federal Rule of...