HORACE W. CRUMP, JR., Plaintiff-Appellant, v. JANE BLUE, LCF Nurse, NATHAN MIKEL, LCF Health Unit Manager (HUM), TIMOTHY SHAW, LCF Resident Unit Manager (RUM), and SUZANNE E. GROFF, LCF Nurse Practitioner (NP), in their personal capacities, Defendants-Appellees.
No. 24-1126
United States Court of Appeals for the Sixth Circuit
Decided and Filed: November 15, 2024
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 24a0255p.06. Argued: October 29, 2024. Before: SUTTON, Chief Judge; READLER and BLOOMEKATZ, Circuit Judges.
COUNSEL
ARGUED: Logan L. Page, WILKINSON STEKLOFF LLP, Washington,
SUTTON, C.J., delivered the opinion of the court in which READLER and BLOOMEKATZ, JJ., joined. READLER, J. (pp. 10–12), delivered a separate concurring opinion.
OPINION
SUTTON, Chief Judge. While incarcerated at the Lakeland Correctional Facility in Michigan, Horace Crump filed this
I.
Anyone who files a lawsuit in federal court presumptively must pay a filing fee. See
When Crump filed his lawsuit, he did not pay his filing fee and instead sought leave to proceed in forma pauperis. The district court held that the Act‘s three-strikes rule disqualified him from obtaining relief under this exception and dismissed his complaint. Crump appeals, disputing two of the three strikes.
II.
To bring the issue into view, it helps to describe Crump‘s prior cases at the outset. In one of them, the district court dismissed Crump‘s federal claims for failure to state a claim and declined to exercise supplemental jurisdiction over his state-law claims. Crump v. Patrick et al., No. 1:11-cv-15 (W.D. Mich. Feb. 18, 2011). In the other case, the court dismissed Crump‘s claims against some defendants for failure to state a claim and declined to review the claims against one defendant due to the Eleventh Amendment. Crump v. Armstrong et al., No. 2:11-cv-45 (W.D. Mich. Sept. 27, 2013). In each of these mixed-claim cases, Crump‘s complaint was dismissed in part for grounds not expressly listed in the Act‘s three-strikes rule.
That backdrop tees up this question: When, if ever, do mixed-claim actions, those involving claims covered by the Act and claims not covered by the Act, count as strikes under the Prison Litigation Reform Act?
The language of the Act offers an initial clue. It states that a prisoner may not “bring a civil action or appeal a judgment” in forma pauperis if the prisoner has three or more times “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.”
Congress‘s use of “action” elsewhere in the Act supports this reading. When it uses “action” in other places in the Act, it does so in a way that refers to a lawsuit or proceeding, not individual claims. See, e.g.,
In the Act, Congress also showed that it knew how to refer separately to claims when it wished. See, e.g.,
This reading also comes with the comfort of common sense. Imagine if some claims in an action were dismissed for failure to state a claim, and others proceeded to succeed on the merits. It would be strange to attribute a failure-to-state-a-claim strike to an inmate who won the action‘s war if not its every battle. See Thompson v. DEA, 492 F.3d 428, 432 (D.C. Cir. 2007).
Nearly all of our sister circuits interpret the Act in this way. Take the Second Circuit: “We therefore hold, consistent with our sister circuits and the plain language of § 1915(g), that a prisoner‘s entire ‘action or appeal’ must be dismissed on a § 1915(g) ground to count as a strike under the PLRA.” Escalera v. Samaritan Vill., 938 F.3d 380, 382 (2d Cir. 2019) (per curiam). And the Third Circuit: “[T]he plain text of § 1915(g) precludes [the] view that a mixed dismissal is a strike. That is because a mixed dismissal is not a dismissal of the action on one or more of the three enumerated grounds.” Talley v. Wetzel, 15 F.4th 275, 280 (3d Cir. 2021). And the Fourth Circuit: “[W]e conclude that ‘action’ in § 1915(g) unambiguously means an entire case or suit. Therefore, § 1915(g) requires that a prisoner‘s entire ‘action or appeal’ be dismissed on enumerated grounds in order to count as a strike.” Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir. 2011). And the Fifth Circuit: “The statute speaks of ‘actions,’ not ‘claims,’ that were dismissed as frivolous, malicious, or for failure to state a claim. The ordinary meaning of ‘action’ is the entire lawsuit.” Brown v. Megg, 857 F.3d 287, 290 (5th Cir. 2017). And the Seventh Circuit: “Here we believe that the obvious reading of the statute is that a strike is incurred for an action dismissed in its entirety on one or more of the three enumerated grounds.” Turley v. Gaetz, 625 F.3d 1005, 1008–09 (7th Cir. 2010). And the Ninth Circuit: “Here, the statutory language is clear—if a case was not dismissed on one of the specific enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. Harris, 935 F.3d 670, 673 (9th Cir. 2019). And the D.C. Circuit: “[I]f a court dismisses one or more of a prisoner‘s claims for a reason that is not enumerated in the PLRA, the case does not count as a strike.” Fourstar v. Garden City Grp., Inc., 875 F.3d 1147, 1151–52 (D.C. Cir. 2017).
Gauged by this interpretation, Crump‘s prior actions—one that included a decision not to exercise supplemental jurisdiction over state-law claims and one that included a dismissal on Eleventh Amendment immunity grounds—do not count as strikes. Take each in turn.
Supplemental jurisdiction. In the first action, the district court dismissed Crump‘s federal claims for failure to state a claim and declined to exercise supplemental jurisdiction over his state-law claims. Crump v. Patrick et al., No. 1:11-cv-15 (W.D. Mich. Feb. 18, 2011). This dismissal does not count as a strike. When the court declined to exercise supplemental jurisdiction, it did not dismiss the state-law claims as frivolous, malicious, or for failure to state a claim. To the contrary, it chose not to address the merits of those claims. Because the dismissal of Crump‘s state-law claims falls outside the three-strikes rule‘s enumerated grounds, his action does too.
We have considerable company in reaching this conclusion in the context of this kind of claim. The Third, Ninth, and D.C. Circuits all hold that the dismissal of a mixed-claim action like this one—involving a district court‘s refusal to exercise supplemental jurisdiction over a state-law claim—does not count as a strike. See Talley, 15 F.4th at 279–80; Harris, 935 F.3d at 674; Fourstar, 875 F.3d at 1151–52. We know of no appellate court that has followed a different approach with respect to such dismissals.
Sovereign immunity. Turn to Crump‘s other dismissed action. In this one, a court dismissed Crump‘s claims against the Michigan Department of Corrections as barred by the Eleventh Amendment and against the Department‘s officers for failing to state a claim. Crump v. Armstrong et al., No. 2:11-cv-45 (W.D. Mich. Sept. 27, 2013). The dismissal of this action, too, does not count as a strike.
A dismissal premised on Eleventh Amendment immunity does not appear on the list of grounds for a cognizable strike. See
Congress, notably, showed that it knew how to deal with immunity issues elsewhere in the Act. Only two subsections up, the Act requires courts to dismiss civil actions “at any time” if they determine that the action is frivolous, malicious, fails to state a claim—the three grounds in the three-strikes rule—or “seeks monetary relief against a defendant who is immune from such relief.”
An Eleventh Amendment dismissal also does not by its terms count as a frivolous or malicious action. “[T]here is nothing necessarily frivolous or malicious in bringing an action for which the court lacks jurisdiction.” Thompson, 492 F.3d at 437. Sure, in a given case, a claimant might frivolously or maliciously ignore an immunity defense. But the district court made no such finding here. See Daker v. Comm‘r, Ga. Dep‘t of Corr., 820 F.3d 1278, 1284 (11th Cir. 2016) (“[W]e cannot conclude that an action or appeal ‘was dismissed on the grounds that it is frivolous’ unless the dismissing court made some express statement to that effect.” (quoting
Other appellate courts generally follow this approach when it comes to immunity dismissals. See Ball v. Famiglio, 726 F.3d 448, 463 (3d Cir. 2013) (holding that “dismissal based on the immunity of the defendant . . . does not constitute a PLRA strike, including a strike based on frivolousness, unless a court explicitly and correctly concludes” so); Harris, 935 F.3d at 675–76 (holding that a dismissal in part for quasi-judicial immunity was not a strike because “Congress’ omission of immunity-based dismissal from the strike provision in § 1915(g) evidences its intent generally not to include this dismissal ground as a strike”). But see Prescott v. UTMB Galveston Tex., 73 F.4th 315, 320 (5th Cir. 2023) (holding without analysis that a prior action was dismissed for failing to state a claim, in part because the Eleventh Amendment immunized the defendant and was thus a strike).
Pointer v. Wilkinson does not alter this conclusion, whether with respect to a dismissal of supplemental state-law claims or a dismissal on Eleventh Amendment grounds. 502 F.3d 369 (6th Cir. 2007). The prisoner in that case incurred a strike when the district court dismissed his mixed-claim complaint because he failed to exhaust some claims and because the others failed to state a claim. Id. at 377. Even though the three-strikes rule does not mention failure to exhaust, we reasoned that the purpose of the Act was to stem the tide of meritless prisoner litigation, and there was nothing meritorious about claims that were unexhausted or failed to state a claim. Id. at 373–75. We therefore called the whole action a strike. Id. at 377.
While we appreciate that the breadth of Pointer‘s mixed-claim reasoning could extend to today‘s mixed-claim dismissals, we see no good ground to extend the decision beyond its holding. Pointer‘s reasoning has not fared well in the other circuits, and it‘s not clear that it respects the language of the Act. Either way, the essential point today is that Pointer‘s holding does not cover these dismissals. A dismissal for failure to exhaust is different in kind from today‘s dismissals. A failure
Pointer‘s progeny do not alter this conclusion. In Pointer‘s 17-year tenure in the Federal Reporter, we have relied on it just twice when analyzing mixed-claim dismissals that turn only in part on dismissals premised on the enumerated grounds in the Act. See Taylor v. First Med. Mgmt., 508 F. App‘x 488 (6th Cir. 2012); Sublett v. McAlister, No. 20-5190, 2020 WL 8614219 (6th Cir. Oct. 9, 2020). Both cases led to unpublished decisions, which do not bind later courts. Sun Life Assurance Co. of Can. v. Jackson, 877 F.3d 698, 702 (6th Cir. 2017). In both cases, the courts looked at different types of dismissals from those at issue here. Taylor, 508 F. App‘x at 495–96 (dismissed in part for failure to state a claim and in part because the parties either settled on the merits or voluntarily dismissed the claims); Sublett, 2020 WL 8614219, at *2 (dismissed at summary judgment because the prisoner‘s claim was frivolous as to one defendant and failed on the merits as to the other). And in both cases, the courts looked at whether the claims had merit, not whether the court should hear the claims at all. Taylor, 508 F. App‘x at 497–98 (noting that “Taylor never proved the claims dismissed without prejudice had merit” and that the prior dismissal “counts as a strike . . . if the [district] court finds that there was not a settlement on the merits”); Sublett, 2020 WL 8614219, at *4 (“The district court properly assessed a strike for Sublett‘s retaliation claim against [one of the two defendants] after concluding that it was frivolous.”); see also Simons v. Washington, 996 F.3d 350, 352–54 (6th Cir. 2021) (holding that a court that dismisses an action cannot “bind a later court with its strike determination,” as our court purported to do in Sublett).
Pointer has obtained limited traction outside of our circuit. To our knowledge only the Tenth Circuit has followed Pointer, and only for its holding with respect to failure-to-exhaust claims. Thomas v. Parker, 672 F.3d 1182, 1183–85 (10th Cir. 2012). Notably, that court started by reaffirming the “well established” rule that a “partial dismissal based on one of the grounds enumerated in § 1915(g) is generally not a proper basis for assessing a strike.” Id. at 1183. Then, it read Pointer only for the narrow proposition that a dismissal in part for failure to exhaust and in part for failure to state a claim counted as a strike. Id. at 1184–85. The Tenth Circuit‘s approach confirms, rather than undermines, our approach.
We appreciate the risk that prisoners could add meritless state-law claims or claims against immune defendants to their federal claims to try to avoid strikes. But district courts are not without recourse. A district court facing that situation retains the authority to dismiss such a claim, label the claim frivolous, and assess a strike. See, e.g., Talley, 15 F.4th at 282; Tolbert, 635 F.3d at 653–54; Fourstar, 875 F.3d at 1152.
We vacate the district court‘s judgment and remand for further proceedings.
CONCURRENCE
CHAD A. READLER, Circuit Judge, concurring. For purposes of the Prison Litigation Reform Act, a prisoner incurs a strike if a prior “appeal” or entire “action” was “dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.”
Yet that does not make a district court‘s job any easier. Consider the challenges faced by the courts on litigation‘s frontlines. District courts experience a “flood” of prisoner complaints, “[m]ost” of which “have no merit” and are often frivolous. Jones v. Bock, 549 U.S. 199, 203 (2007). Roughly a tenth of federal district court dockets are consumed by prisoner civil rights or conditions of confinement claims. See Admin. Off. of the U.S. Cts., Judicial Facts and Figures tbl. 4.4 (2023), https://perma.cc/L8LN-MSBQ. The PLRA‘s three strikes provision helps identify the meritorious needles in that enormous haystack. Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1726 (2020). But taking jurisdictional dismissals out of the mix considerably weakens the force of the strike rule.
With
With today‘s opinion, the crafty prisoner could well aim to strike proof his complaint. The limits on exercising supplemental jurisdiction offer one avenue for doing so. The traditional “rule of thumb” or presumption adopted by the Supreme Court
So when faced with a prisoner complaint containing a jurisdictional flaw, what is a district court to do to prevent strike proofing? While perhaps not in line with the judicial efficiency goals undergirding the PLRA, district courts worried about vexatious prisoner litigation might consider giving cases more attention at the front end to ensure that strikes are properly awarded. As today‘s opinion rightly recognizes, dismissing a claim on jurisdictional grounds does not handcuff the district court from further recognizing as an ancillary matter that the claim is also strike worthy—that is, it also fails to state a claim, is frivolous, or is malicious.
See Maj. Op. at 9; cf. Willy v. Coastal Corp., 503 U.S. 131, 137–38 (1992) (permitting a federal court to consider issues collateral to the merits, such as sanctions and contempt proceedings, even where it otherwise lacks subject matter jurisdiction). Likewise, with respect to tagalong state-law claims, a district court could choose to adjudicate the merits of those claims, particularly when they are neither novel nor difficult. Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993). Similarly, district courts should be wary of unnecessarily attaching the “jurisdictional label” to resolve a claim. See Arbaugh v. Y&H Corp., 546 U.S. 500, 510 (2006) (observing that courts sometimes have “been profligate in [their] use of the term” jurisdictional). The Armstrong strike here is a good example. The district court suggested that a jurisdictional infirmity (Eleventh Amendment) existed with the underlying
So where does that leave us? Congress could step in to add jurisdictional dismissals to the PLRA strike provision. Until it does, district courts may be well served by