72 F.4th 16
2d Cir.2023Background
- Kevin Griffin, a pro se incarcerated plaintiff, sued a town supervisor under 42 U.S.C. § 1983 alleging wrongful termination and sought to proceed in forma pauperis (IFP).
- The district court denied IFP under 28 U.S.C. § 1915(g) after finding Griffin had three prior strikes: Griffin I (N.D.N.Y. dismissal), Griffin II (appeal dismissed), and Griffin III (N.D.N.Y. dismissal).
- Griffin I: district court dismissed the complaint on alternative grounds—res judicata, statute of limitations, and failure to state a claim (Rule 12(b)(6)).
- Griffin II: this Court dismissed Griffin’s appeal from Griffin I as lacking an arguable basis (frivolous under § 1915 standards).
- Griffin III: district court sua sponte dismissed a subsequent complaint on res judicata grounds.
- Griffin appealed the denial of IFP; the Second Circuit considered whether (a) a dismissal on alternative grounds and (b) a res judicata dismissal can count as strikes under § 1915(g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a dismissal on multiple alternative grounds counts as a § 1915(g) strike when one ground independently warrants dismissal | Griffin: mixed/alternative dismissals should not create a strike for a ground that was not the sole basis | Appellee: a dismissal counts if one alternative ground alone fully justified dismissal | Held: Yes — if one alternative ground independently and fully justified dismissal (adopting O’Neal approach). |
| Whether an appeal dismissal counts separately as a strike | Griffin: should not produce an additional strike beyond the underlying dismissal | Appellee: frivolous appeal dismissal is a distinct strike | Held: Yes — dismissal of an appeal as frivolous counts as a separate strike. |
| Whether a res judicata dismissal can be a § 1915(g) strike | Griffin: res judicata dismissals shouldn’t necessarily be strikes | Appellee: res judicata can be a strike when it’s plain from the complaint | Held: Yes — a res judicata dismissal may be a strike when the defense is clear on the face of the complaint and the action is plainly barred. |
Key Cases Cited
- Escalera v. Samaritan Vill., 938 F.3d 380 (2d Cir. 2019) (discussed mixed-dismissal limits for § 1915(g))
- Neitzke v. Williams, 490 U.S. 319 (U.S. 1989) (frivolousness = lack of arguable basis in law or fact)
- O'Neal v. Price, 531 F.3d 1146 (9th Cir. 2008) (alternative-ground dismissal counts when one ground was fully sufficient)
- Akassy v. Hardy, 887 F.3d 91 (2d Cir. 2018) (statute-of-limitations dismissal based on complaint can be a § 1915(g) strike)
- Chavis v. Chappius, 618 F.3d 162 (2d Cir. 2010) (appeal dismissal can count as separate strike)
- Gleash v. Yuswak, 308 F.3d 758 (7th Cir. 2002) (res judicata dismissal may be a strike if defense is plain)
- Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001) (res judicata counted as a strike)
- Cieszkowska v. Gray Line New York, 295 F.3d 204 (2d Cir. 2002) (res judicata dismissal appropriate under § 1915(e))
- Lomax v. Ortiz‑Marquez, 140 S. Ct. 1721 (U.S. 2020) (consistent construction of PLRA subsections required)