Case Information
*1 Before P OSNER , K ANNE , and H AMILTON , Circuit Judges .
P OSNER , Circuit Judge . The plaintiff, an inmate of a federal prison in Indiana, seeks damages from prison personnel who he claims violated his right under the Eighth Amendment not to be subjected to cruel and unusual punishments. He alleges that they used an excess of force in removing him from his cell during a shakedown and that having removed him they con- fined him under unduly harsh conditions and refused *2 to provide medical care for the injuries he’d sustained as a result of the force used against him. The district judge denied the plaintiff’s motion to be allowed to proceed in forma pauperis , on the ground that he had three strikes, one for each of three previous civil suits brought by him that had been dismissed. 28 U.S.C. § 1915(g). (Two of those suits are called Paul v. United States District Court . They are No. 2:09-cv-345-LJM-DML (S.D. Ind. Dec. 3, 2009), and No. 2:09-cv-347-LJM-DML (S.D. Ind. Dec. 3, 2009). The third is Paul v. United States , No. 2:09-cv-346- RLY-WGH (S.D. Ind. Dec. 2, 2009).) The plaintiff failed to pay the filing and docketing fees in full and so the judge dismissed the suit, though without prejudice.
The statute we cited requires that a prisoner prepay in full all filing and docketing fees in civil actions and appeals if on three or more occasions while in prison he had “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.” But the three suits that the judge thought had cost the plaintiff strikes had all been dismissed not as frivolous, malicious, or failing to state a claim, but instead for failure to pros- ecute. In each case the district judge had rightly found the complaint to be “unintelligible” and dismissed it on the basis of Fed. R. Civ. P. 8(a)(2), which requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Typical is the claim in the second of the three cases in which the plaintiff received a third strike: “Agencies of the United States of America within or without protec- *3 tion of sovereign title did use sovereign privilege to initiate dependent and oppressive situations of involun- tary servitude, economic leverage and situations of, and requiring contacts with or through mutually exclusive people and places that by design or definition include contingent actions of cession inconsolable to my charac- ter. Previous to current request on this paper I claimed and contributed to the record and in fact have main- tained that my complaints to that extent resulted in attacks and commitments to what anywhere else would be considered a post or station and have incurred criminal complaints as well as consecutive psycho- somatic attacks and separations previous to the present and the present situation actually and ideally.”
In each case the judge had granted leave to the plaintiff to file an amended complaint that would be intelligible, but the plaintiff had neither filed an amended complaint nor otherwise responded and the judge had then dismissed the case for want of prosecu- tion, but without prejudice. There was actually a fourth suit, also unintelligible, also dismissed for failure to prosecute (again without prejudice), Paul v. United States No. 2:09-cv-349-WTL-TAB (S.D. Ind. Dec. 2, 2009), plus two other unintelligible suits filed after the complaint in this case (both also named Paul v. United States No. 2:10- cv-194-JMS-DML (S.D. Ind. Sept. 14, 2010), and No. 2:11-cv- 29-JMS-TAB (S.D. Ind. Feb. 15, 2011)), both again dis- missed, one with and one without prejudice.
So: within a space of 13 months a prisoner files seven suits (including the present one); in all but *4 one case the complaint is unintelligible; all are dis- missed but none is dismissed for being frivolous or mali- cious or failing to state a claim. Can he be permitted to continue on this path until the statute of limitations expires, without ever having to pay a filing or docketing fee? His complaint in the present suit, which states that another inmate wrote it for him, does state a claim, but it was filed after four of his suits had been dismissed.
Dismissals because the plaintiff failed to prosecute
his case are deemed to be with prejudice unless the
order of dismissal states otherwise, Fed. R. Civ. P.
41(b) but the orders in six of the seven cases, including
the present one, do state otherwise. Why the judges
dismissed five of those six cases without prejudice is
unexplained. (The dismissal of the present suit with-
out prejudice was correct, however, since if the plaintiff
files the required filing and docketing fees there is
no reason he shouldn’t be allowed to reinstate the suit.)
But it doesn’t matter, because all that “dismissal without
prejudice” means is that the plaintiff can refile his suit
if he corrects the error or other deficiency that caused
the suit to be dismissed. A dismissal is a dismissal, and
provided that it is on one of the grounds specified in
section 1915(g) it counts as a strike,
Evans v. Illinois Dep’t
of Corrections
, 150 F.3d 810, 811 (7th Cir. 1998), whether
or not it’s with prejudice. E.g.,
Smith v. Veterans Admin-
istration
, 636 F.3d 1306, 1313 (10th Cir. 2011);
O’Neal v.
Price
,
The Fourth Circuit, it is true, has held that when the
ground for a dismissal is failure to state a claim, the
*5
dismissal cannot be a strike if it is without prejudice.
McLean v. United States
, 566 F.3d 391, 396-97 (4th Cir.
2009). The concern is that by dismissing without
prejudice a suit for failure to state a claim, a judge
might not
really
mean that the complaint failed to
state a claim; he might mean just that the claim was “po-
tentially meritorious but inartfully pleaded.”
Id
. at 397.
So “without prejudice” may be an aid in interpreting
a dismissal — may show that the stated ground was mis-
leading — but normally a dismissal of a suit because the
suit is frivolous or malicious, or fails to state a claim,
is with prejudice and therefore unambiguously based
on a ground in section 1915(g). See
Gladney v. Pendleton
Correctional Facility
,
If, as seems to have been the situation in the Fourth Circuit’s case, a judge dismisses a complaint because he can’t tell whether it states a claim, and thus explicitly or implicitly invites the plaintiff to amend the com- plaint and the plaintiff does so, the dismissal is interlocu- tory; the amendment keeps the suit going rather than initiating a new suit. So — we imagine all courts would agree the dismissal of the first complaint is not a strike. But when, as in each of the three cases on which the judge in the present case based his three-strike finding, the plaintiff is told to amend his unintelligible complaint and fails to do so, the proper ground of dis- missal is not want of prosecution but failure to state a claim, one of the grounds in section 1915(g) for calling a strike against a prisoner plaintiff.
In each of the three cases the initial complaint was
“simply incomprehensible and thus failed to disclose
*6
the presence or absence of a claim for which relief might
be granted by a federal court.”
Okoro v. Bohman
, 164 F.3d
1059, 1063 (7th Cir. 1999); see also
United States ex rel.
Cafasso v. General Dynamics C4 Systems, Inc.
,
Having been given that chance, however, and having
failed to take it, the plaintiff should in each of the three
*7
cases have been shut down, his suit dismissed for failure
to state a claim; for in each case all the judge was left
with was a complaint that, being irremediably unintel-
ligible, gave rise to an inference that the plaintiff could
not state a claim. Dismissal under Rule 12(b)(6) was the
proper course. E.g.,
United States ex rel. Garst v. Lockheed-
Martin Corp.
,
An inference of “malice” (an independent ground for calling a strike) could also be drawn if, as possibly demon- strated by this plaintiff’s repeated filing of unintelligible complaints, the prisoner’s conduct indicates that he “in- tended to harass,” as in Lindell v. McCallum , 352 F.3d 1107, 1109 (7th Cir. 2003).
Judge Lawrence described the three earlier cases as each having been “dismissed on the grounds that it was frivolous or failed to state a claim.” They indeed failed to state a claim and each should have been dismissed with prejudice on that ground.
That said, we think the plaintiff was entitled to take
the previous dismissals at face value, and since none of
them was based on any of the grounds specified in
section 1915(g), to infer that he was not incurring
strikes by the repeated dismissals. The statute is explicit,
and the case law confirms, see, e.g.,
Haury v. Lemmon
No. 11-2148, slip op. at 4-5 (7th Cir. Aug. 25, 2011) (per
curiam
); Tafari v. Hues
,
We reverse the judgment of the district court and remand for further proceedings consistent with this opinion.
R EVERSED AND R EMANDED . 9-6-11