Tolbert v. Stevenson

• Decision Date: 14 February 2011
• Docket Number: No. 09–8051.,09–8051.
• Citation: 635 F.3d 646
• Parties: Eric L. TOLBERT, Plaintiff–Appellant,v.STEVENSON; Dalrymple; Franklin Steele; Neely; Preston, Lieutenant; Robert Lewis; Billie J. Weaver; Horn, Sergeant; Mullis, Sergeant; Bennett; Bryant, C.O., Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

635 F.3d 646

Eric L. TOLBERT, Plaintiff–Appellant,

v.STEVENSON; Dalrymple; Franklin Steele; Neely; Preston, Lieutenant; Robert Lewis; Billie J. Weaver; Horn, Sergeant; Mullis, Sergeant; Bennett; Bryant, C.O., Defendants–Appellees.

No. 09–8051.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 7, 2010.Decided: Feb. 14, 2011.

ARGUED: Richard Donald Dietz, Kilpatrick Stockton, LLP, Winston–Salem, North Carolina, for Appellant. Peter Andrew Regulski, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees. ON BRIEF: Adam H. Charnes, Kilpatrick Stockton, LLP, Winston–Salem, North Carolina, for Appellant. Roy Cooper, Attorney General, State of North Carolina, Raleigh, North Carolina, for Appellees.Before NIEMEYER, KING, and DUNCAN, Circuit Judges.Reversed and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge NIEMEYER and Judge KING concurred.

OPINION

DUNCAN, Circuit Judge:

This appeal requires us to interpret the “three strikes” provision of the Prison Litigation Reform Act of 1995 (“PLRA”), 28 U.S.C. § 1915(g), which generally prohibits a prisoner from proceeding in forma pauperis (“IFP”) if he has previously had three or more actions dismissed as frivolous, malicious, or for failing to state a claim. The district court denied Eric Tolbert (“Tolbert”) IFP status because he had brought at least three prior lawsuits that were dismissed in part as frivolous or for failing to state a claim, and Tolbert appealed. Because we conclude, consistent with the view of the majority of circuits to consider the issue, that the plain language of § 1915(g) applies only to actions dismissed entirely as frivolous, malicious, or for failing to state a claim, we reverse.

I.

On September 1, 2009, Tolbert filed a complaint alleging that correctional officers had subjected him to excessive force and retaliated against him for filing grievances about these allegations. Although the district court allowed Tolbert to proceed without paying an initial filing fee,¹ it later revoked Tolbert's IFP status based on the PLRA's “three strikes” rule. The rule prohibits a prisoner from proceeding IFP, absent “imminent danger of serious physical injury,” if he has “on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal ... that was 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).

Before initiating the instant suit, Tolbert had filed at least four other lawsuits while incarcerated: Tolbert v. Hassan, No. 10–cv–00014 (W.D.N.C.2010); Tolbert v. Duda, No. 07–ct3088 (E.D.N.C.2007); Tolbert v. Lightsey, No. 05–ct–428 (E.D.N.C.2005); and Tolbert v. Munns, No. 05–ct–745 (E.D.N.C.2005). In each of these cases, some—but not all—of Tolbert's claims were dismissed specifically as frivolous or for failing to state a claim. In Hassan, some of Tolbert's claims were dismissed for failure to state a claim; the remaining claims were transferred to the Middle District of North Carolina where the action is still pending. See No. 10–cv–00014, 2010 WL 317781 (dismissed in part and transferred in part Jan. 19, 2010). In Duda and Munns, some of Tolbert's claims were dismissed as frivolous and Tolbert later voluntarily dismissed his remaining claims without prejudice. ² See Duda, No. 07–ct–3088 (dismissed in part Oct. 18, 2007); id. (voluntary dismissal approved Jan. 8, 2008); Munns, No. 05–ct–745 (dismissed in part Nov. 30, 2005); id. (voluntary dismissal approved March 27, 2006). Finally, in Lightsey, Tolbert's 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. See 05–ct–428 (judgment on the pleadings granted July 21, 2006); id. (summary judgment granted Sept. 27, 2006).

On the basis of this filing history, the district court determined that Tolbert was “not entitled to proceed as a pauper with this action because he previously has had at least three actions dismissed for frivolity and/or his failure to state a claim for relief.” J.A. 23. It therefore dismissed Tolbert's complaint without prejudice to his right to refile his action with payment of the proper fees. This appeal followed.

II.

On appeal, Tolbert argues that the district court erred in classifying his prior proceedings as strikes for purposes of § 1915(g)'s three strikes provision. The government responds that the district court was correct in characterizing three of these cases as strikes.³ In the government's view, the calculation of strikes under § 1915(g) should include “partial strikes” where some claims were dismissed on § 1915(g) grounds and no claim in the case ever reached adjudication on its merits. We review de novo the appropriate interpretation of § 1915(g). See Broughman v. Carver, 624 F.3d 670, 674 (4th Cir.2010).

We begin by laying out in greater detail the parties' conflicting positions regarding the appropriate interpretation of § 1915(g). We then turn to an analysis of § 1915(g), first considering the provision's plain language and then addressing the government's argument that a recent Supreme Court decision renders that language ambiguous. We conclude by applying our interpretation of § 1915(g) to Tolbert's litigation history.

A.

Tolbert's proposed interpretation of § 1915(g) is straightforward: he argues that the language of § 1915(g) mandates that an entire action be dismissed as frivolous, malicious, or for failing to state a claim in order for the action to count as a strike. Accordingly, he claims that his “partial strikes”—in which some of his claims were dismissed on these grounds, but others were not—do not count as strikes under § 1915(g). He therefore urges us to find that he is eligible for IFP status in this appeal, and to reverse the district court's order dismissing his action below.

The government asserts, on the other hand, that the term “action” as used in § 1915(g) is ambiguous. To support this position, it relies on the Supreme Court's decision in Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Jones examined the term “action” as specifically used in 42 U.S.C. § 1997e(a), a provision of the PLRA mandating that “[n]o action shall be brought” until administrative remedies are exhausted. See 549 U.S. at 220–22, 127 S.Ct. 910. Based on this particular statutory phrasing, the Court in Jones found that in § 1997e(a), the term “action” actually meant “claim.” Id. at 220–24, 127 S.Ct. 910. As Jones explained, the phrase “no action shall be brought” is “boilerplate language” used throughout the Federal Code, and has never been thought to bar the meritorious portions of an action from proceeding even if some claims are barred on non-exhaustion or statute of limitations grounds. Id. Accordingly, Jones found that reading “action” as “claim” in § 1997e(a) comported with the general principle that courts should “proceed[ ] with the good [claims] and leave [ ] the bad.” Id. at 221, 127 S.Ct. 910. The Court did not determine the meaning of “action” in other statutory contexts.

The government contends that Jones stands for the proposition that “action,” as used throughout the PLRA, “can be a cipher, deriving its meaning not from common usage, but from the plainly expressed intent of Congress.” Appellee's Br. at 11. The government further argues that this purpose-based approach to interpreting the PLRA counsels strongly in favor of its reading of § 1915(g). Because Congress enacted the PLRA “to address concerns about the ever-growing number of prison-condition lawsuits that were threatening to overwhelm the capacity of the federal judiciary,” Green v. Young, 454 F.3d 405, 406 (4th Cir.2006) (internal quotations omitted), the government urges us to construe § 1915(g)'s three strikes rule in a way that places greater limits on non-meritorious prisoner litigation. To that end, the government would require a district court tasked with determining whether a prisoner has three strikes to first identify any previous partial strikes, i.e., any prior suits dismissed at least in part on enumerated § 1915(g) grounds, and then determine whether any of the other claims in those suits eventually reached the stage of adjudication on the merits. If none did, the government proposes counting the partial strike as a § 1915(g) strike in order to dissuade prisoners from bringing suits that lack sufficient basis to reach adjudication on their merits.⁴

In other words, the government argues for a process in which a prisoner who has had a suit dismissed in part for reasons not listed in § 1915(g), but in part as frivolous, malicious, or for failing to state a claim, might incur a strike under § 1915(g). Whether or not the prisoner incurred a strike would depend upon whether he eventually proceeded to litigate any of the claims dismissed on non-§ 1915(g) grounds to the stage of adjudication on the merits. For example, under the government's theory, a prisoner that had his case dismissed in part for failure to state a claim and then voluntarily dismissed the remaining claims would incur a strike if he never re-filed the voluntarily dismissed claims within the applicable statute of limitations. Additionally, as the government clarified at oral argument, under its proposed procedure, if a prisoner's prior suit was dismissed on summary judgment, the district court evaluating strikes should review the prior case's history to determine whether summary judgment was granted because the prisoner failed to state a claim or because no genuine issue of material fact existed.

The government claims that under its reading of § 1915(g), Tolbert should be deemed to have at least three strikes. Accordingly, it asks us to deny Tolbert IFP status in this appeal and to affirm the district court's dismissal of Tolbert's suit. Alternatively, the government asserts that even if ...