KEVIN PITTS v. STATE OF SOUTH CAROLINA; ANDERSON COUNTY SHERIFF‘S DEPARTMENT; MINDY HERVEY, Solicitor, individual and official capacity; CHARLES WHITEN, Attorney, individual and official capacity; J. CARPENTER, Attorney, individual and official capacity; KEVIN MATHERSON, State Officer, individual and official capacity; J. MARTIN, State Officer, individual and official capacity; MIKE J. PELUSO, State Officer, individual and official capacity; R. GEBING, State Officer, individual and official capacity
No. 20-7250
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
April 13, 2023
PUBLISHED
Appeal from the United States District Court for the District of South Carolina, at
Argued: December 8, 2022
Decided: April 13, 2023
Vacated in part and remanded by published opinion. Judge Harris wrote the majority opinion, in which Judge Giles joined. Judge Richardson wrote a dissenting opinion.
ARGUED: Kathryn L. Wynbrandt, JENNER & BLOCK LLP, Washington, D.C., for Appellant. Erin B. Ashwell, MCGUIREWOODS, LLP, Richmond, Virginia, for Court-Appointed Amicus. ON BRIEF: Amir H. Ali, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Washington, D.C.; Ian Heath Gershengorn, JENNER & BLOCK LLP, Washington, D.C., for Appellant. Alan Wilson, Attorney General, L. David Leggett III, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. Robert S. Day, Evan X. Tucker, MCGUIREWOODS LLP, Richmond, Virginia, for Court-Assigned Amicus Counsel.
PAMELA HARRIS, Circuit Judge:
Under the Prison Litigation Reform Act‘s “three-strikes rule,” an incarcerated plaintiff who has previously filed three lawsuits dismissed on certain grounds ordinarily will not be granted in forma pauperis status to file a new suit. When Kevin Pitts filed his first pro se
I.
A.
We begin by briefly explaining the “three-strikes rule” in the background of this case. The Prison Litigation Reform Act (“PLRA“), enacted in 1996, is intended to limit the number of frivolous lawsuits filed by prisoners. To that end, the PLRA regulates the circumstances under which prisoners may obtain in forma pauperis status, which allows them to pay court filing fees on a schedule instead of all up front. See
[I]f the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 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, [he may not proceed in forma pauperis] unless the prisoner is under imminent danger of serious physical injury.
B.
We turn now to the proceedings in this case. Plaintiff Kevin Pitts is incarcerated in South Carolina state prison after pleading guilty to murder. In 2020, he filed a pro se
The case was then assigned to a magistrate judge for screening. When a prisoner sues a governmental defendant, the PLRA‘s screening provision tasks the court with an initial review to determine whether the complaint is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or “seeks monetary relief from a defendant who is immune”
The magistrate judge accordingly screened Pitts‘s complaint at the outset of the proceedings, prior to service of process on the defendants. After reviewing Pitts‘s claims in some detail, the magistrate judge recommended that his action be dismissed. Pitts‘s claims based on his arrest and prosecution, the magistrate judge found, were barred by Heck v. Humphrey, 512 U.S. 477 (1994), under which a
The district court accepted the magistrate‘s recommendation over Pitts‘s objections and dismissed Pitts‘s complaint at the screening stage. Pitts v. South Carolina, No. 8:20-cv-00092-JFA-KFM, 2020 WL 4506681, at *4 (D.S.C. Aug. 5, 2020). The district court agreed that because Pitts “was convicted of murder and there is no evidence that he has successfully invalidated this conviction, [his] claims are barred by Heck.” Id. at *2. The court went on to identify additional grounds on which Pitts had “fail[ed] to state a claim for relief,” id., including the sovereign immunity of the state of South Carolina and the absolute prosecutorial immunity of the lawyer who prosecuted his case. Id. at *2–3. Accordingly, the district court dismissed Pitts‘s complaint without prejudice and without issuance and service of process. Id. at *4.
If the district court had stopped there, then we would have a very different case. But instead, the district court went on to declare in its opinion that the dismissal of Pitts‘s lawsuit “constitutes a strike” under
Pitts, now with counsel, timely appealed, challenging only the district court‘s strike designation. First, Pitts argued, the district court erred by adjudicating the strike question at all: According to Pitts, district courts lack authority to prospectively label a dismissal a strike under
Because the defendants in this action, including the state of South Carolina, had not been served or appeared in the district court at the time of the dismissal and declined to participate in the appeal, we appointed amicus counsel to defend the district court‘s judgment. See Hill v. Madison County, 983 F.3d 904, 907 (7th Cir. 2020) (appointing amicus counsel to argue in support of district court‘s judgment in same posture).
II.
The threshold question in this appeal is whether
We conclude that we need not – indeed, cannot – reach the merits of the district court‘s strike designation, because we agree with Pitts that the district court lacked authority to make that call in the first place. Accordingly, and as explained below, we vacate the district court‘s judgment in part and remand for issuance of a modified order consistent with this opinion.
A.
This is an unusual case in that the parties before us – along with every federal court of appeals to address the question – agree on the central issue presented: whether a district court, at the time it dismisses a complaint under the PLRA, is authorized to make a binding determination that its dismissal will count as a strike in future applications of
We return to the text of
In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 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, unless the prisoner is under imminent danger of serious physical injury.
As noted above, the federal courts of appeals to consider the question are unanimous on this threshold point. See also Deleon v. Doe, 361 F.3d 93 (2d Cir. 2004) (per curiam); Gonzalez v. United States, 23 F.4th 788 (8th Cir. 2022). Pitts suggests that we go further, finding that the district court lacked not only statutory authority but also Article III jurisdiction to make a strike determination, on the theory that whether a dismissal constitutes a strike becomes ripe for adjudication only after a subsequent request for IFP status. We decline that invitation. It is true, as Pitts argues, that some courts have framed their analysis in constitutional terms, see Deleon, 361 F.3d at 95, or suggested that reading
In any event, we need not reach out to resolve constitutional questions here. Whether or not Congress could have written the PLRA, as the Hill court hypothesized, to require that a court dismissing an action also decide conclusively whether its dismissal counts as a strike, see Hill, 983 F.3d at 906, it plainly did not do so. See Fourstar, 875 F.3d at 1152 (“If Congress wanted district courts to contemporaneously label dismissals as strikes or wanted those labels to bind future district courts, Congress could have said so in the PLRA. Congress said no such thing.“). Instead,
B.
As explained above, the parties here agree, as we have just held, that district courts lack authority to adjudicate conclusively whether their dismissals of prisoner actions constitute strikes under the three-strikes rule. We turn now to the question on which the parties – and the courts – are divided: What happens if a district court nevertheless purports to do just that, as the district court did here? One might assume that a strike adjudication that exceeds a district court‘s authority must be vacated, and at least two circuits have taken that straightforward approach. See Deleon, 361 F.3d at 95; Dooley, 957 F.3d at 378; see also Gonzalez, 23 F.4th at 791 (Gruender, J., dissenting) (explaining that vacatur is appropriate remedy when district court “decides a question outside its jurisdiction“). Other courts, however, have endeavored to save these pronouncements by treating them as non-binding dicta, see Simons, 996 F.3d at 352–53; Gonzalez, 23 F.4th at 790–91, and Amicus urges us to do the same. We do not think that is a viable approach.
Our starting point is that the district court‘s strike determination against Pitts was intended and presented as an actual adjudication of the issue, equally as binding as the court‘s other rulings. The strike designation appears in the “Conclusion” section of the court‘s order, side by side with the rest of the court‘s decretal language: “Thus, Plaintiff‘s complaint is dismissed without prejudice and without issuance and service of process. This action shall serve as a ‘strike’ in accordance with
Separating dictum from holding in a court‘s opinion can sometimes be tricky. See United States v. Rubin, 609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring); Gonzalez, 23 F.4th at 791–92 (Gruender, J., dissenting) (disagreeing with majority‘s treatment of strike designation as dicta). But at bottom, dicta are statements that help to explain a court‘s decision – not “by providing a legal basis for it,” as “holdings do,” but by “clarifying or providing context for it.” Gonzalez, 23 F.4th at 792 (Gruender, J., dissenting) (citing BLACK‘S LAW DICTIONARY (11th ed. 2019)). Here, it is undisputed that the district court was authorized to make one and only one decision: how to dispose of Pitts‘s complaint. Its strike designation – stated in mandatory and conclusive terms in its opinion, Pitts, 2020 WL 4506681, at *4 (“The dismissal of the instant action constitutes a strike[.]“), as well as in its ultimate ruling, see J.A. 3 – does nothing to expand on or explain that decision. We see no way to read that language as “anything other than a second decision: a pronouncement that purports to settle whether the dismissal counts as a strike within the meaning of
And in this context, allowing to stand as “dicta” what looks to all the world like an actual court ruling may pose special risks. First, there is the risk that other courts – the “fourth” courts charged with applying the three-strikes rule – will defer to these purported judgments. See Hill, 983 F.3d at 908 (explaining that strike designations by dismissing courts “draw a future judge‘s attention“). The dismissing court, without an IFP request before it, may have given less attention than it otherwise would to evaluating whether its dismissal qualifies as a
Second, the distinction between an actual strike-designation ruling and dicta that just looks like a strike-designation ruling may well be lost on the pro se litigants most directly affected. Pitts, for instance, would have had no way of knowing that when the district court decreed both that his complaint was dismissed and that his action constituted a strike under
Recognizing those problems, Amicus proposes a solution. Neither future courts nor prisoners will be misled by purported-but-not-really strike rulings that prove incorrect, Amicus reasons, if we review and correct those non-rulings on appeal. We do not see how this can work. The premise here, advanced by Amicus, is that the district court‘s strike designation against Pitts need not be vacated because it is nothing more than dicta. But if that is so, then it follows that we cannot review it; we are authorized to review judgments, not dicta. See Everett v. Pitt Cnty. Bd. of Educ., 678 F.3d 281, 291 (4th Cir. 2012). Amicus cannot have it both ways: If we are going to convert prospective strike adjudications into dicta for purposes of allowing them in court orders, then we cannot turn around and convert them back into binding rulings when it comes time for appellate review. Two courts have held as much. See Simons, 996 F.3d at 354 (declining to review merits of prospective strike designation after deeming it dicta); Gonzalez, 23 F.4th at 791 (same). And while one court has tried to thread this needle, see Hill, 983 F.3d at 908, we respectfully disagree that the same strike designation can be “dicta in the sense that [it is] not binding” but non-dicta in the sense that it may be appealed.5
To be clear, none of these concerns are implicated when a district court, in dismissing a complaint under the PLRA, includes in its opinion actual dicta regarding
III.
For the reasons given above, the judgment of the district court is vacated in part and the matter remanded to the district court for modification of its order consistent with this opinion.
VACATED IN PART AND REMANDED
RICHARDSON, Circuit Judge, dissenting:
One way that the Prison Litigation Reform Act limits frivolous prisoner litigation is by denying in forma pauperis status to prisoners who have “on 3 or more prior occasions, while incarcerated or detained in any facility, 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 does the conclusion that the strike determination is to be made by a later court bar a district court from saying anything about that future strike determination? Of course not. On this too, the majority and I agree: The district court can provide its opinion that a dismissal will constitute a strike under
These areas of agreement are what matters most here: The ultimate strike designation is to be made by a later court considering a prisoner‘s future suit, but the district court dismissing a suit can opine that the dismissal is a strike.
The majority, however, takes another step. It says that, while the district court can express its view, it becomes reversible error if the court doesn‘t accompany that view with the proper hedge. True, the district court here did not hedge its statement that its dismissal “constitutes a strike“; the court did not say that the dismissal ”should constitute a strike,” or that it ”may constitute a strike,” or that it ”likely constitutes a strike.” In other words, the district court did not affirmatively flag that its statement will not bind a future court. Yet the majority‘s opinion does so now. Even so, the majority demands that the district court redo its order, just to preface its statement with a dicta disclaimer. Since the district court‘s strike statement is dicta—and since that is the only portion of the district court‘s order that the defendant challenges here—there is nothing left for our court to do. We should simply dismiss the appeal. See Gonzalez, 23 F.4th at 790–91. I thus respectfully dissent.