MAURICE COTTON, Plaintiff-Appellant, v. JOSEPH H. NOETH, ANNE MARIE MCGRATH, J. WOLCOTT, JOEY CLINTON, D. CLARY, T. BARBER, MICHAEL CAPRA, M. KOPP, C. JAMISON, S. DEGROAT, Defendants.
Docket Nos. 20-1644-pr, 20-2710-pr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 14, 2024
August Term 2023 (Argued: September 21, 2023)
WALKER, CHIN, and NATHAN, Circuit Judges.
Appeal from a decision and order of the United States District Court for the Western District of New York (Sinatra, J.), denying the request of an inmate to proceed in forma pauperis in a civil rights lawsuit filed in 2018. The district court denied the request, concluding that the inmate had accumulated three strikes under the Prison Litigation Reform Act in connection with dismissals of lawsuits he filed in 1991, 2006, and 2007, all in the Western District of New York.
VACATED AND REMANDED.
Judge Walker concurs in part and dissents in part in a separate opinion.
RONA PROPER (Gregory Dubinsky, on the brief), Holwell Shuster & Goldberg, for Plaintiff-Appellant.
Sarah L. Rosenbluth, Assistant Solicitor General, for Letitia James, Attorney General of the State of New York, as Amicus Curiae.1
CHIN, Circuit Judge:
On December 6, 2018, plaintiff-appellant Maurice Cotton filed this case pro se in the United States District Court for the Western District of New York (Sinatra, J.), alleging, inter alia, that he was wrongfully denied a transfer from one New York prison facility to another and retaliated against for filing grievances in connection with the transfer request. He sought declaratory and injunctive relief and monetary damages. Cotton also filed with the complaint a motion for leave to proceed in forma pauperis (“IFP“). See
We hold that the district court erred in denying Cotton‘s request for IFP status because it incorrectly held that each of the three lawsuits it considered counted as a PLRA strike. Accordingly, we VACATE and REMAND for further proceedings.
Cotton is serving a twenty-five-year sentence at the Green Haven Correctional Facility (“Green Haven“) for attempted murder, assault, and criminal possession of a weapon. He has filed numerous lawsuits during his time in prison; the district court counted at least nineteen in federal courts in the State of New York. On December 6, 2018, Cotton filed the instant lawsuit under
On March 6, 2020, the district court denied Cotton‘s motion for IFP status; it concluded that Cotton had previously filed “at least three” lawsuits that were dismissed as either frivolous or malicious or for failure to state a claim, thereby constituting “strikes” under the PLRA. The PLRA bars a prisoner from proceeding IFP after receiving three such strikes, unless he is “under imminent danger of serious physical injury.” See
The district court specifically considered the following lawsuits:
(1) Cotton v. McCarthy, No. 06 Civ. 477, 2009 WL 3165606 (W.D.N.Y. Sept. 2009) (”McCarthy“), where the court dismissed Cotton‘s federal claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure and declined to exercise supplemental jurisdiction over his related state-law claims; (2) Cotton v. Titone, No. 91 Civ. 697 (not reported) (W.D.N.Y. Nov. 8, 1991) (”Titone“), where the court dismissed Cotton‘s complaint for failure to comply with Rule 8 of the Federal Rules of Civil Procedure; and (3) Cotton v. Lema, No. 08 Civ. 326 (not reported) (W.D.N.Y. Nov. 18, 2008) (”Lema“), where the court dismissed Cotton‘s complaint as premature pursuant to
On April 2, 2020, Cotton moved for reconsideration. On May 18, 2020, while the motion for reconsideration was pending, Cotton filed a notice of appeal -- the operative notice for the instant appeal. On July 16, 2020, the district court denied the motion for reconsideration. The court ordered Cotton to pay the filing fee by August 15, 2020, or the case would be dismissed without prejudice. The court directed the Clerk of Court to close the case if the fee was not paid by that date. Cotton did not pay the filing fee, but the district court did not issue a final order of dismissal, nor did the Clerk of the Court close the case. Even assuming the district court‘s order denying the IFP motion was not a final order, and this appeal is therefore an interlocutory appeal, this Court has appellate jurisdiction under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real Est., Inc., 865 F.2d 22, 23 (2d Cir. 1988) (per curiam) (“An interlocutory appeal may be taken from an order denying leave to proceed in forma pauperis under [Cohen].” (collecting cases)).
We review a district court‘s denial of IFP status pursuant to
Cotton contends, and the Attorney General agrees, that the district court erred in finding that the McCarthy and Titone lawsuits counted as strikes under the PLRA. First, we address whether those two lawsuits constitute PLRA strikes. We find that they do not. Second, although that ruling is a sufficient basis to vacate and remand, for the reasons discussed below, we nonetheless address whether the Lema dismissal pursuant to Heck v. Humphrey also counts as a PLRA strike. We conclude that it does not. Accordingly, we vacate the district court‘s denial of Cotton‘s request for IFP status and remand for further proceedings.
I. Applicable Law
The relevant provision of the PLRA provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding 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.
II. Application
We address each of the three lawsuits in turn.
1. The McCarthy Lawsuit
In McCarthy, Cotton sued the City of Buffalo and city officials, asserting a Section 1983 claim and related state-law claims. 2009 WL 3165606 at *2. The dismissal was then affirmed by this Court. The district court below concluded that this dismissal constituted a PLRA strike because it was dismissed under Rule 12(b)(6). But McCarthy was a “mixed dismissal“; the court dismissed only Cotton‘s federal claim under Rule 12(b)(6) and declined to exercise supplemental jurisdiction over his state-law claims. This Court has held that to constitute a strike, “a prisoner‘s entire ‘action or appeal’ must be dismissed on a § 1915(g) ground . . . .” Escalera v. Samaritan Vill., 938 F.3d 380, 382 (2d Cir. 2019) (holding that a “mixed dismissal” of state and federal claims was not a strike, where the state-law claims were dismissed not on the merits but for lack of subject matter jurisdiction). “Accordingly, mixed dismissals are not strikes.” Id. McCarthy was therefore not a PLRA strike.
2. The Titone Lawsuit
The district court below was unable to find a decision and order in Titone, but relied on the docket sheet to conclude that the dismissal of the lawsuit constituted a strike because the dismissal was for failure to comply with Rule 8, and Cotton was given an opportunity to amend his complaint. No. 91 Civ. 697 (not reported), Dkt. 4. The Supreme Court has held, however,
3. The Lema Lawsuit
Finally, in Lema, Cotton sued the State of New York, the City of Buffalo, and state and city officials, asserting a Section 1983 claim based on proceedings that preceded and followed his arrest and imprisonment. No. 08 Civ. 326 (not reported), Dkt. 5 at 1. The court dismissed Cotton‘s complaint, sua sponte, explaining -- twice -- that the case was premature. First, the Lema court wrote:
It may be that plaintiff is filing this claim prophylactically, within the statute of limitations for a § 1983 action, in response to Wallace v. Kato, 549 U.S. 384, 127 S. Ct. 1091 (2007) and understands that his case must be dismissed without prejudice as premature until he succeeds in the challenge of his conviction.
Dkt. 5 at 7 n.1. Second, it added:
Plaintiff‘s claims are dismissed without prejudice as premature until he has succeeded in overturning his conviction, the validity of which his claims impugn.
Id. at 8.
The district court below held that the Lema dismissal constituted a strike, relying on Heck v. Humphrey, noting that other district courts in this circuit have held that Heck dismissals are PLRA strikes. See, e.g., Toliver v. Colvin, No. 12-CV-00227V(F), 2016 WL 11258222, at *10 (W.D.N.Y. Sept. 28, 2016), report and recommendation adopted as modified, No. 12-CV-227(LJV)(LGF), 2017 WL 547963 (W.D.N.Y. Feb. 10, 2017); McDaniels v. Fed. Bureau of Prisons, No. 15-cv-6163 (KMK), 2016 WL 6997525, at *4 (S.D.N.Y. Nov. 29, 2016). The district court noted, however, that the Second Circuit had not yet ruled on the issue.
The Attorney General argues that we need not decide whether the Lema dismissal constitutes a strike. We conclude there is good reason to reach the question. Article III requires, inter alia, that a dispute be ripe for adjudication: that is, “it must present a real, substantial controversy, not a mere hypothetical question.” Nat‘l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 (2d Cir. 2013) (citation omitted). Ripeness has both constitutional and prudential dimensions. Constitutional ripeness is “a limitation on the power of the judiciary . . . . But when a court declares that a case is not prudentially ripe, it means that the case will be better decided later and that the parties will not have constitutional rights undermined by the delay.” Id. at 688 (quoting Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003)).
Whether Cotton has two or three PLRA strikes remaining is a dispute both constitutionally and prudentially ripe for adjudication. It is constitutionally ripe because it is a live controversy affecting Cotton‘s rights -- any strike could impact Cotton‘s ability to bring future cases. This dispute is also prudentially ripe for adjudication because (1) whether Lema counts as a strike is a purely legal question involving
The circuits that have considered the issue are split as to whether Heck dismissals count as PLRA strikes. See Lomax, 140 S. Ct. at 1724 n.2 (noting the circuit split but not reaching the issue). The Third, Fifth, Tenth, and D.C. Circuits agree that Heck dismissals always count as PLRA strikes. See, e.g., Garrett v. Murphy, 17 F.4th 419, 427 (3d Cir. 2021) (“We now join the Fifth, Tenth, and D.C. Circuits in holding that the dismissal of an action for failure to meet Heck‘s favorable-termination requirement counts as a PLRA strike for failure to state a claim.“). The Seventh Circuit, however, has expressly adopted the position Cotton is arguing here. See, e.g., Mejia v. Harrington, 541 F. App‘x 709, 710 (7th Cir. 2013) (unpublished) (”Heck . . . deal[s] with timing rather than the merits of litigation . . . . As a result, neither this suit nor the appeal counts as a ‘strike’ under § 1915(g).“); see also Courtney v. Butler, 66 F.4th 1043, 1049 n.1 (7th Cir. 2023) (noting that the Seventh Circuit is in the “jurisdictional affirmative-defense camp“).
The Ninth Circuit has taken a qualified position, holding that “[a] Heck dismissal is not categorically frivolous -- that is, having ‘no basis in law or fact,‘” because “plaintiffs may have meritorious claims that do not accrue until the underlying criminal proceedings have been successfully challenged.” Washington v. L.A. Cnty. Sheriff‘s Dep‘t, 833 F.3d 1048, 1055 (9th Cir. 2016) (citation omitted). At the same time, the Ninth Circuit observed that “so-called Heck dismissals come in various guises,” id. at 1056, and concluded that a Heck dismissal can constitute a PLRA strike for failure to state a claim depending on the circumstances.2 Id. at 1055-56.
We agree that Heck dismissals do not categorically count as a strike. Rather, we hold that whether a Heck dismissal qualifies as a strike depends on
the circumstances. The key is whether the dismissal turned on the merits or whether it was simply a matter of sequencing or timing. As we have explained, the rule created by the Supreme Court in Heck is an “accrual rule designed to avoid inconsistent results and new avenues of collateral attack.” Smalls v. Collins, 10 F.4th 117, 137 (2d Cir. 2021) (citing Heck, 512 U.S. at 486-89). Heck dismissals therefore do not reflect a final judgment on the merits; instead, such dismissals “reflect a matter of ‘judicial traffic control’ and prevent civil actions from collaterally attacking existing criminal judgments.” Washington, 833 F.3d at 1056 (citation omitted); see also Mejia, 541 F. App‘x at 710 (”Heck and Edwards deal with the timing rather than the merits of litigation. Until the conviction
Outside the Heck v. Humphrey context, this Court has held that dismissals for prematurity do not count as PLRA strikes. Heck dismissals are analogous to dismissals for failure to exhaust administrative remedies, and we have held that “a dismissal by reason of a remediable failure to exhaust should not count as a strike.” Snider v. Melindez, 199 F.3d 108, 115 (2d Cir. 1999); see id. (“[W]e do not believe that failure to exhaust qualifies as failure to state a claim in the context of the PLRA. Nor would an action be rendered ‘frivolous’ by a failure to exhaust that was remediable.“); see also Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007) (holding that “dismissal because of the prematurity of [a] suit does not qualify as a strike” because the PLRA “was designed to stem the tide of egregiously meritless lawsuits, not those temporarily infected with remediable procedural flaws“) (citations omitted).
As our cases suggest, one consideration is remediability. There may be cases where it is apparent from the complaint that Heck is an irremediable bar -- for example, if it is clear from a complaint that a plaintiff can no longer challenge an underlying conviction (e.g., for timing reasons or because he has already done so), the Heck dismissal should count as a strike because the failure to invalidate the conviction is irremediable. In these circumstances, the Heck dismissal would constitute a final judgment on the merits. But a dismissal under Heck “without prejudice as premature until [plaintiff] has succeeded in overturning his conviction,” Lema, No. 08 Civ. 326, Dkt. 5 at 8, is not a PLRA strike because it is not “irremediably defective, and dismissal of such [a case] is not based on a determination that it ultimately cannot succeed.” Tafari, 473 F.3d at 443.
As the dissent acknowledges, the “presumption” that Heck dismissals are strikes because they are Rule 12(b)(6) dismissals “may not be absolute.” Dissent at 2 & n.2. As we concluded in Snider, dismissals for prematurity do not constitute a failure to state a claim “in the context of the PLRA,” see Snider, 199 F.3d at 115 (emphasis added). In other words, even crediting the dissent‘s conclusion that suits dismissed under Heck functionally do not “state a claim” under Rule 12(b)(6) because they lack a present cause of action, those dismissals still do not constitute PLRA strikes. While Section § 1915(g) “refers to any dismissal for failure to state a claim, whether with prejudice or without,” Lomax, 140 S. Ct. at 1723, this Court has made clear that “fail[ure] to state a claim” was not intended to apply to “suits dismissed without prejudice for failure to comply with a procedural prerequisite.” Snider, 199 F.3d at 111.
In light of these considerations, here we conclude that the Lema dismissal does not constitute a strike under the PLRA, for the dismissal clearly turned on sequencing and timing rather than the merits. The district court in Lema twice wrote that the basis for dismissal was prematurity. Its language makes clear that it was not passing judgment as to the merits of Cotton‘s claims in the case, but rather that it was dismissing the claims without prejudice to Cotton returning to court if he succeeded in overturning his conviction. Indeed, the district court surmised that Cotton might have filed the complaint “prophylactically,” because of concerns that the statute of limitations might run. Dkt. 5 at 7 n.1. The district court clearly was of the view that the Heck bar was remediable.
We also note that the Lema court‘s citation to Section 1915(e)(2)(B) did
CONCLUSION
The district court erred in holding that each of the three lawsuits discussed supra counted as a PLRA strike. Thus, we VACATE the district court‘s denial of Cotton‘s request to proceed IFP and REMAND for further proceedings.
WALKER, Circuit Judge, concurring in part and dissenting in part:
I join the majority‘s opinion in full through Part II.2, holding that the McCarthy and Titone dismissals do not count as strikes under
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that “‘to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,’ a plaintiff in a [42 U.S.C.] § 1983 action first [must] prove that his conviction ha[s] been invalidated in some way.” McDonough v. Smith, 139 S. Ct. 2149, 2157 (2019) (quoting Heck, 512 U.S. at 486). Absent such “favorable termination of his prosecution,” id. at 2156, the plaintiff‘s action must be dismissed.
As relevant here, § 1915(g) imposes a so-called “strike” against an incarcerated plaintiff for each action or appeal he brings in federal court that was “dismissed on the grounds that it . . . fails to state a claim upon which relief may be granted.”
The majority concludes that an action dismissed under Heck is generally not “dismissed on the grounds that it . . . fails to state a claim upon which relief may be
I disagree. When a court dismisses a § 1983 action under Heck, it generally does so because the plaintiff has “fail[ed] to state a claim upon which relief can be granted.”
I. Heck dismissals are governed by Rule 12(b)(6) and Rule 12(b)(6) dismissals generally count as strikes under § 1915(g).
”Heck is clear. Suits dismissed for failure to meet Heck‘s favorable-termination requirement are dismissed because the plaintiff lacks a valid ‘cause of action’ under § 1983.” Garrett v. Murphy, 17 F.4th 419, 427 (3d Cir. 2021) (quoting Heck, 512 U.S. at 489). Favorable termination is an “element that must be alleged and proved.” Heck, 512 U.S. at 484. Without it, an action challenging the validity of a sentence or conviction “is not cognizable under § 1983.” Id. at 488.
Because Heck determines when a § 1983 suit is “cognizable,” Heck dismissals are governed by Rule 12(b)(6).
The PLRA is also clear. “[C]onstruction” of the PLRA “must begin with the language employed by Congress and the assumption that the ordinary meaning of the language accurately expresses the legislative purpose.” Tafari v. Hues, 473 F.3d 440, 442 (2d Cir. 2007) (internal quotation marks omitted). Section 1915(g) refers to actions dismissed for “fail[ure] to state a claim upon which relief may be granted.”
The majority‘s principal argument to the contrary is that ”Heck dismissals are analogous to dismissals for failure to exhaust administrative remedies, and we have held that ‘a dismissal by reason of a remediable failure to exhaust should not count as a strike.‘” Maj. Op. at 14 (quoting Snider v. Melindez, 199 F.3d 108, 115 (2d Cir. 1999)).3
This analogy has two flaws. First, it departs from the statutory text. We treat dismissals for failure to exhaust administrative remedies differently from other dismissals under Rule 12(b)(6) because the PLRA expressly refers to “exhaustion of administrative remedies.”
a. The PLRA treats dismissals for failure to exhaust administrative remedies differently from dismissals under Heck.
The majority erroneously draws its analogy from our decision in Snider. See Maj. Op. at 14. There, we engaged in a careful textual analysis of
No such textual considerations apply here. Whereas § 1997e(c)(2) explicitly invokes failure to exhaust administrative remedies, § 1915(g) nowhere mentions Heck or the principles underlying that decision.4 So, there is no special “interplay” to consider when analyzing Heck dismissals under the strike provision. Snider, 199 F.3d at 111. Instead, we must presume from “the language employed by Congress” that dismissals under Heck are no different from other dismissals under Rule 12(b)(6). Tafari, 473 F.3d at 442.
b. Dismissals for failure to exhaust administrative remedies are not analogous to dismissals under Heck.
Nor do any rough similarities between Heck and administrative exhaustion support the majority‘s position. Heck expressly rejected the majority‘s comparison: “We do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action.” 512 U.S. at 489 (emphasis added). This is an important distinction, both legally and practically.
i. Unlike Heck, administrative-exhaustion requirements do not affect statutes of limitations and do not implicate the finality of criminal convictions.
There are two crucial legal differences between Heck dismissals and failure-to-exhaust dismissals.
First, as Heck explained, the two kinds of dismissals have different implications for statutes of limitations. When Heck applies, a § 1983 claim does not accrue until after the contested judgment is invalidated.
Second, and more fundamentally, Heck reflects concern for finality, not just ripeness. Invalidating a prior conviction or sentence ordinarily requires impugning a judgment entitled to the “presumption of regularity.” Daniels v. United States, 532 U.S. 374, 381 (2001). Partly for this reason, the Supreme Court understood Heck as applying the “hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.” Heck, 512 U.S. at 486. No such presumption of regularity arises, however, when exhausting administrative remedies. To the contrary, because exhaustion requires no success on the merits, a failure to exhaust may be “simply” cured. Snider, 199 F.3d at 112. In short, we typically presume that a Heck-barred claim may never be brought, but that an exhaustion-barred claim may be.
ii. In practice, overcoming Heck‘s bar is generally far more onerous than exhausting administrative remedies.
These presumptions matter practically. In Snider, we observed that “[i]f the time permitted for pursuing administrative remedies has not expired, a prisoner who brings suit without having exhausted these remedies can cure the defect simply by exhausting them and then reinstituting his suit” if necessary. 199 F.3d at 111-12. Heck does not admit of such a “simpl[e]” solution. Id. at 112. A potential § 1983 plaintiff must first seek to have his “conviction or sentence“—which enjoys a presumption of regularity—“reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court‘s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 487. Even under the best of circumstances, overcoming Heck is no easy feat.
The majority‘s contrary suggestion undermines Congress‘s intent. “Congress enacted the PLRA to curb the increasing number of civil lawsuits filed by prisoners.” In re Nagy, 89 F.3d 115, 117 (2d Cir. 1996). Congress‘s “theory was that a ‘flood of nonmeritorious claims,’ even if not in any way abusive, was ‘effectively preclud[ing] consideration of’ suits more likely to succeed.” Lomax, 140 S. Ct. at 1726 (quoting Jones v. Bock, 549 U.S. 199, 203 (2007)). Yet the majority largely reads Heck-barred suits out of § 1915(g)‘s strike provision. And it does so based upon the false premise that Heck‘s bar is easily overcome. This holding permits nearly every prisoner who has not yet sought to invalidate his conviction—no matter the merits of his potential challenge—to file a separate § 1983 claim free from § 1915(g)‘s strictures, thereby frustrating congressional intent.
To sum up: Heck dismissals have little in common with administrative-exhaustion dismissals, whether under the PLRA, broader legal principles, or practically. Heck dismissals therefore must fall under the general rule applicable to all Rule
III. The district court properly treated the Lema dismissal as a strike.
In view of these principles, the Lema dismissal should count as a PLRA strike. Nothing in Lema indicated that Heck‘s bar could be overcome. Moreover, contrary to the majority‘s characterization, the Lema court clearly stated that its order of dismissal rested upon a strike-worthy basis.5
a. Cotton had not defeated the presumption that his underlying conviction remained valid.
The majority concludes that the Lema dismissal “clearly turned on sequencing and timing rather than the merits.” Maj. Op. at 16. But Lema, like every other Heck dismissal, did implicate the merits: it turned upon Cotton‘s lack of a “cause of action.” Heck, 512 U.S. at 489.
Heck‘s application to Lema was no mere temporary defect. When Cotton filed the Lema action under § 1983, he had made no colorable showing that his underlying conviction was invalid. The majority suggests that Cotton may have filed the Lema case “prophylactically” (though mistakenly) in response to Wallace v. Kato, 549 U.S. 384 (2007).6 Maj. Op. at 10, 17 (quoting Dkt. 5 at 7 n.1). But Cotton—who is now represented by counsel—has not indicated that he ever collaterally challenged his conviction in Lema. Indeed, the Lema court noted that Cotton had brought a similarly Heck-barred claim in another action. See Dkt. 5 at 3 (observing that Cotton attempted to raise § 1983 claims concerning the same underlying conviction in McCarthy); Cotton v. McCarthy, No. 06-CV-477S, Dkt. 8 at 4 (denying leave to amend the complaint because new allegations concerning that conviction were likely Heck-barred). When the Lema action was dismissed, Cotton
conviction‘s “presumption of regularity.” Daniels, 532 U.S. at 381.
b. The Lema court articulated the basis for its judgment with sufficient clarity.
Finally, the majority suggests in dicta that the Lema court‘s order dismissing the action was insufficiently clear. This ignores the Lema court‘s express holding that Cotton had failed to state a claim upon which relief might be granted.
Citing the Third Circuit‘s decision in Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013), the majority states: “a strike is appropriate only where a court gives a basis for dismissal that clearly falls within one of the categories enumerated in Section 1915(g).” Maj. Op. at 17–18. Under the relevant portion of Byrd, a strike accrues only when an entire action is “(1) dismissed explicitly because it . . . ‘fails to state a claim’ or (2) dismissed pursuant to a statutory provision or rule that is limited solely to dismissals for such reasons, including (but not necessarily limited to) . . . [§] 1915(e)(2)(B)(ii).” Byrd, 715 F.3d at 126.7
Byrd provides no basis for removing Lema from § 1915(g)‘s ambit. The majority claims that “the Lema court‘s citation to Section 1915(e)(2)(B) did not specify which prong of that subsection the court was invoking.” Maj. Op. at 17. That is incorrect. The Lema court stated: “plaintiff‘s claims must be dismissed without prejudice pursuant to
is enough to render the dismissal a strike.
***
I would affirm the district court‘s order insofar as it held that the Lema dismissal counted as a PLRA strike. I respectfully dissent from the majority‘s holding to the contrary.