Tolbert v. Stevenson
2011 U.S. App. LEXIS 2814
| 4th Cir. | 2011Background
- Tolbert, a prisoner, filed a 2009 civil action alleging excessive force and retaliation by corrections officers.
- District court granted IFP status, then revoked it under 28 U.S.C. § 1915(g) after finding Tolbert had three or more prior strikes.
- Tolbert had at least four prior lawsuits, some claims dismissed as frivolous or for failure to state a claim; others partially resolved or voluntarily dismissed.
- District court dismissed Tolbert’s current action without prejudice for lack of IFP eligibility, pending payment of fees.
- Government argued that Tolbert already had three strikes, counting partial strikes and pending merits, under § 1915(g).
- Tolbert appealed, challenging the district court’s interpretation and urging that only actions wholly dismissed as strikes count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What does 'action' mean in § 1915(g)? | Tolbert argues 'action' means an entire case; partial dismissals do not count as strikes. | Government argues § 1915(g) counts prior partial strikes that never reached merits. | Plain meaning: 'action' means entire suit; partial strikes do not count. |
| Does § 1915(g) count prior actions that were dismissed in part as strikes? | Tolbert contends only wholly dismissed actions are strikes. | Government contends partial dismissals should count if no claims reached merits. | No; only actions dismissed entirely as strike grounds count. |
| Should Tolbert be denied IFP status pending remand based on discretionary authority for abusive filers? | Tolbert requests IFP status; it would be reversible if not three strikes. | Government urges denial under potential abuse, or discretionary authority if applicable. | Court declines to decide discretionary authority at this stage; does not reach merits of that question. |
| Did Tolbert actually incur three strikes under the court’s reading of § 1915(g)? | Tolbert argues none of the cited cases counts as a strike under the plain meaning. | Government contends Duda, Munns, and Lightsey qualify as strikes. | Tolbert had zero strikes under § 1915(g); the district court erred in denying IFP. |
Key Cases Cited
- Turley v. Gaetz, 625 F.3d 1005 (7th Cir. 2010) (strike for every action dismissed in its entirety on enumerated grounds)
- Jones v. Bock, 549 U.S. 199 (U.S. 2007) (interpreted 'action' as 'claim' for § 1997e(a); boilerplate language in separate context)
- Green v. Young, 454 F.3d 405 (4th Cir. 2006) (dismissal for failure to exhaust not a § 1915(g) strike)
- Thompson v. Drug Enforcement Admin., 492 F.3d 428 (D.C. Cir. 2007) (actions containing claims dismissed on grounds outside § 1915(g) not strikes)
- Mayfield v. Texas Dep't of Criminal Justice, 529 F.3d 599 (5th Cir. 2008) (readings of § 1915(g) with respect to partial disclosures)
- Powells v. Minnehaha Cnty Sheriff Dep't, 198 F.3d 711 (8th Cir. 1999) (implicit endorsement of component distinctions in strikes analysis)
- Pointer v. Wilkinson, 502 F.3d 369 (6th Cir. 2007) (some circuits count partial dismissals as strikes; this case noted caution)
- Bostick v. Stevenson, 589 F.3d 160 (4th Cir. 2009) (discretionary authority to deny IFP for abusive filing; not decided here)