McLean v. United States

workplace. consequences punitive Quentin McLEAN, Plaintiff-Appellant, government interest of

The second operations having in not administrative through patronage below overly politicized America; UNITED STATES of United level. Defendants claim policy-making Congress, Defendants- States welfare, “[t]here that when comes Appellees. Republican perspective, [a] Demoerat[ic] an Independent perspective, perspective, 06-7784. No. political perspectives.” other numerous Appeals, States Court of United Appellants at 8. But the Constitu- Brief of Fourth Circuit. holding limits on liveli- imposes tion hostage party loyalty hood of citizens Argued: Sept. supplant- on imposes law limits May 21, Decided: non-parti-

ing professional attainment field social san administration partisan requirements. Both

services with the same conclu- support of these interests here, basing hiring namely sion political affiliation violated on decision rights. First Amendment plaintiffs though ‘right’ has no to a person “[E]ven benefit and even governmental valuable deny government may him the though the reasons, any number of there benefit for govern- which the are reasons some rely.” Perry Sinder- not ment mann, right Fields had no director, but defendants

serve as BCDSS her right rely political had affilia- no hiring not her. Be- tion as a reason for however, cause, clearly estab- law time of the existing at the lished that the action taken was hiring decision unconstitutional, defendants are entitled immunity. judgment ac-

qualified and the case is remand- cordingly reversed proceedings further consistent with ed for this opinion. REMANDED

REVERSED AND Garden, Student

ARGUED: Charlotte Counsel, University Law Georgetown Cen- ter, Litigation Program, Wash- Appellate D.C., Eric ington, Appellant. for Joel Wil- son, Attorney, of the United States Office Norfolk, Virginia, Appellees. for ON Goldblatt, Director, BRIEF: Steven H. Counsel, Forbes, Benja- D. Colin Student Schuman, Counsel, min D. Student Center, University Ap- Law Georgetown pellate Litigation Program, Washington, D.C., Appellant. Rosenberg, Chuck Alexandria, Attorney, Virgi- States United nia, Appellees. GREGORY, MICHAEL,

Before SHEDD, Judges. Circuit opinion. Judge Affirmed published opinion, which MICHAEL wrote joined. Judge GREGORY SHEDD Judge separate concurring in opinion wrote a part dissenting part.

OPINION

MICHAEL, Judge: Circuit Litigation

The Prison Reform Act (PLRA 104-134, Act), or Pub.L. No. (1996), ability 1321-71 limits the Stat. to file civil actions without prisoners prison- fees. prepayment When ac- previously er has filed least three appeals that were dismissed on tions or frivolous, they mali- grounds were cious, upon failed to state claim Act’s “three may granted, be relief prison- provision requires that strikes” danger imminent seri- er demonstrate cious, physical injury proceed in order to or fails to state a ous granted, which relief unless prepayment fees. U.S.C. danger is under today imminent 1915(g). The main issue before us physical injury. serious is whether a dismissal without for failure to state a claim counts as 28 U.S.C. hold that 1915(g). strike under We McLean, a August On previous not. Four of the six actions does Virginia, filed a se action pro McLean, by Quentin plaintiff-ap- filed against under U.S.C. the United case, pellant in this were dismissed with- States and United States out failure to state a claim. Virginia. Eastern District of He chal- result, three-striker, not a

As a McLean retroactive, lenged and uncon- as therefore may he in this proceed appeal and 2244(d) stitutional, AEDPA, im- § of which prepayment filing of fees. His sub- a poses statute of limitations on a state rejected, stantive claim must be however. prisoner seeking corpus to file a habeas attempts McLean sue United States in federal petition court. See 28 U.S.C. Congress, asserting and United States 2244(d). day, § On the McLean same filed a of provision statute limitations proceed a motion for leave to IFP. The the Antiterrorism and Effective Death proceeded directly court district (AEDPA), Penalty Act of 1996 Pub.L. 104- preliminary screening of McLean’s com- (1996), 110 Stat. 1214 is retroactive 1915A(a) required § plaint as and dis- and therefore unconstitutional. Because missed it for failure to state a claim. Mc- the United States and its are States, Lean United No. 2:06-cv-00447 suit, immune such affirm from (E.D.Va. 2006). Sept. The court con- district court’s dismissal of McLean’s com- proceed cluded that McLean’s motion plaint. light IFP moot of the dismissal § 1915A.

I. After a notice of appeal, McLean proceed filed motion this court to IFP. requires The PLRA a district court to prisoner Because of McLean’s our status engage preliminary screening any of clerk’s office treated his IFP as motion in which re- seeks required moot him a separate to file governmental from entity dress or an application our form—for leave employee governmental officer or of a enti- —on proceed without prepayment fees in ac- 1915A(a) (2000). ty. 28 U.S.C. cordance with the PLRA. identify “cognizable court must or claims complaint, any portion dismiss the or application The PLRA required form [thereof, frivolous, malicious, that] or had, McLean to state whether he while fails state a claim upon which relief incarcerated, filed appeals three actions or 1915A(b)(l) be granted.” 28 U.S.C. that were as dismissed or mali- frivolous (2000). The “three strikes” provision cious or for failure to state claim. Mc- PLRA, § 1915(g), denies in and, responded forma Lean in the affirmative as (IFP) pauperis any status who: in- required, listed the names and docket has, occasions, on prior 3 or more while formation for such five actions. The any facility, incarcerated detained in application PLRA form instructed then brought an appeal action or in a support McLean to state “facts in the United States that was on dismissed claim” that he was “under imminent dan- frivolous, grounds it is ger mali- physical injury.” Appel- serious non-habeas actions that he had filed six Leave to Proceed Application lant’s grounds might No. Filing Fees dismissed Prepayment of were Without 2006). McLean 1915(g). Cir. Nov. them strikes under qualify 06-7784 as responded: all six actions were dismissed Specifically, sub- will a claim

My incarceration for failure to state [sic] continue turmoil, worria- ject psychological granted. me can Four were dis- relief [sic], thoughts— tion disturbances and the remain- missed problems healthcare my deteriorating dismissed, with one simply two ing were treated, un- exposures to inadequately that the dismissal noting order counted govern- repeated healthy environment purposes.1 for PLRA a strike corruption employees [sic] ment me, and loss

grown againts hate [sic] II. men Art. 1 sec. rights equality Id. present chal McLean’s of his 1983 action lenges application was PLRA

Once McLean’s contesting of AEDPA’s the enactment filed, an order condition- clerk entered proceed to without of limitations. We reach the mer ally granting him statute leave only eligible stated appeal fees. order its of his if he is to prepayment full “subject or revi- to rescission fees prepayment that it was without under proceed (the statute). deter- any time sion at should To § 1915 IFP resolve the cases has had three appellant mine that issue, eligibility we must determine wheth malicious, frivolous, or for dismissed than prior er he has fewer three dismissals appellant a is to state claim failure or, not, if he that count as strikes whether danger physical under imminent of serious danger physical of serious is imminent States, No. injury.” McLean v. United injury. of whether Mc The determination 2006) (order Nov.29, con- Cir. 06-7784 § 1915(g) is a Lean three-striker for motion ditionally granting appellant’s prej on whether a dismissal without turns prepayment without proceed leave to for to a claim counts as udice failure state fees). following for the a strike. conclude We a is not a reasons that such history litigation A review of McLean’s Virginia, strike. that while incarcerated reveals Michael, upon (1) for to state a claim which missed failure v. No. 7:98-cv-00119 McLean 23, (dismissed (W.D.Va. 1998) granted; without Feb. court noted that dis relief can be upon to state a claim for failure be missal failure to state a claim would for pursuant granted to 28 can which relief be 28 considered a strike under U.S.C. 1915(e)(2)(B)(ii)); reopen § to motion U.S.C. (4th Cir.1999) 1915(g)), § 202 259 F.3d aff'd denied; appeal time file to (5) aff'd opinion); (unpublished v. table McLean (4th Cir.1999) opin (unpublished table 1334 Schillin, 20, (W.D.Va.July 7:99-cv-00319 No. ion); (2) Flemming, No. 7:98-cv- McLean v. (dismissed 1999) without 13, 1999) (dismissed (W.D.Va. Jan. 00731 upon be state a claim which relief can a claim failure state granted pursuant 28 U.S.C. upon granted pursuant to relief can be (6) 1915(e)(2)(B)(ii)); Bolling, v. § McLean 1915(e)(2)(B)(ii)); (3) McLean 28 U.S.C. (W.D.Va. 26, 1999) July No. 7:99-cv-00341 (W.D.Va.May Bolling, 7:99-cv-00221 No. (dismissed upon a claim for failure to state (dismissed 1999) prejudice for failure granted pursuant be to 28 which relief can can be upon which relief to state a claim 1915(e)(2)(B)(ii), sub Mc nom. U.S.C. aff'd U.S.C. granted pursuant 28 Cir.1999) Angelone, Lean Faust, (4) 1915(e)(2)(B)(ii)); No. McLean v. opinion)). (unpublished table 2, 1999) (dis- (E.D. Va. June 2:99-cv-00625 law;

A. of the that is with the knowledge interpretation courts have given includes in list Section statute.”); existing to an also see Miles or of strikes action “that Corp., 19, 32, 111 Apex Marine 498 U.S. grounds on the that it (cid:127)... fails dismissed (“We 112 L.Ed.2d 275 S.Ct. upon may state claim which relief be existing assume that is aware of granted.” 1915(g). 28 U.S.C. inter when it passes legislation.”). law preting provision, we must first deter mine language plain whether its “has coupled When word “dismissed” is unambiguous meaning regard with to the words to state a “[for] failure] particular dispute the case.” Robinson granted,” which relief Co., v. Shell Oil complete phrase has a well-established 136 L.Ed.2d 808 “The that, legal meaning. un Courts have held plainness ambiguity statutory lan specified, less otherwise is guage determined reference 12(b)(6) failure to state claim under Rule itself, language specific context be both presumed judgment on the used, language which that merits and to be rendered with broader context the statute as a whole.” Stores, Moitie, Dep’t See Federated Inc. v. Id. inquiry S.Ct. 843. “Our 399 n. statutory must cease if the language is (1981) (“The fail dismissal for

unambiguous statutory and ‘the scheme is ure to claim under Federal Rule of ” coherent and consistent.’ Id. at 12(b)(6) Civil a ‘judgment Procedure (quoting S.Ct. 843 United States v. Ron ”); the merits.’ Carter Cmty. v. Norfolk Enters., Inc., Pair 489 109 U.S. Ass’n, 970, Hosp. 761 F.2d 974 Cir. (1989)). 1026, 103 1985) (“A district court’s dismissal under 12(b)(6) is, course, Rule prejudice with Our task here to is determine specifically unless orders dismissal with whether an Congress intended or action prejudice.”); out U.S. ex rel. Karvelas appeal “that was on grounds dismissed Hosp., 360 F.3d Melrose-Wakefield it ... to fails state a claim upon which (1st Cir.2004) (“[I]n 241 of a absence may granted” relief be to count aas strike contrary, clear statement to the a dismiss under 28 U.S.C. if that dismissal 12(b)(6) al pursuant to Fed.R.Civ.P. is pre was specifically designated to be “without prejudice.”). sumed to be with prejudice.” language The “fails to a state upon claim may granted” which relief be prior It follows that the type of dismiss- § 1915(g) closely the language tracks al for failure to state a claim contemplated 12(b)(6). Federal Rule of Civil by § Procedure 1915(g) is one that an constituted 12(b)(6) Compare Fed.R.Civ.P. (listing adjudication prejudiced on merits and “failure to a state claim which relief subsequent complaint a with dismissal). granted” can be as grounds for contrast, the same allegations. dis- a Congress directly When incorporates lan prejudice missal without for failure with guage an legal meaning established state claim not an adjudication is on the statute, may merits, into a infer that Congress Haigh, Mann v. 120 F.3d 36 language Cir.1997); intended the on take its estab Cooter & v. Gell Hartmarx lished meaning. United Langley, States v. 496 Corp., (4th Cir.1995) (“It (1990), 110 L.Ed.2d “permits firmly entrenched that pre plaintiff the complaint refile as though legislation Elliot, sumed to enact knowledge filed,” with had never been Mendez (4th Cir.1995). substantively curb the meant to meritless Consequently, F.3d swamped have claims that for failure prejudice without Fauver, plain federal courts.” Shane not fall within the a claim does state (3d Cir.2000) 1915(g)’s (emphasis meaning of unambiguous original). ... phrase [for] “dismissed unqualified result, a As a a claim.” to state fail[ure] prejudice Because a dismissal without for failure without an adjudi- to state a claim not for failure not count a strike. a claim does state merits, treating such cation missal as a strike would undermine Con- B. potentially intent. A meritorious gress’s as to the unam- Although our conclusion inartfully pleaded claim a but dismiss- biguous meaning unqualified that is fail- dismissed a claim context al failure to state wholly a claim is distinct from ure state inquiry, end our is sufficient to frivolous, is dismissed as mali- a claim that and the dis- government’s we address cious, substantively or meritless. The for- legislative pur- assertions sent’s might by competent revived mer contrary supports the PLRA pose of pleading, but the latter cannot. As the interpretation. explained: Second Circuit the enactment impetus behind 1915(g)’s prison- Section mandate that the “end- a concern about the PLRA was qualify ers not for IFP status if brought litigation” less flood frivolous been their suits have thrice dismissed on S14,418 Cong. Rec. by inmates. 141 ‘frivolous, ground they were Hatch). (statement pro- The Act’s of Sen. malicious, claim’ failfed] these expressed dismay because ponents to apply was intended to nonmeritorious ju- “draining precious suits were frivolous prejudice, suits suits dismissed 141 Cong. Rec. S7526 dicial resources.” dismissed (1995) (statement Kyi); also of Sen. see comply procedural prerequi- to with a (statement (1995) S14,418 141 Rec. Cong. site. (“The Hatch) crushing of burden of Sen. (2d Melindez, 199 F.3d 111 it difficult for Snider v. suits makes these frivolous (alteration claims.”). Cir.1999) original). To treat to consider meritorious courts suits equivalent as nonmeritorious not, PLRA purpose The of the prejudice missed those dismissed however, to restric impose indiscriminate for failure to state a prejudice to federal prisoners’ on access the tions as by counting both strikes would Kyi emphasized that courts. Senator clearly expressed goal against cut of judicial for up Act “free resources would Congress. by prisoners and with merit both claims nevertheless contends that Cong. 141 Rec. S7526 dissent nonprisoners.” (1995) (statement “legislative Kyi); purpose it is that the of see also “evident” Sen. (statement S14,627 1915(g)” support does not underlying Cong. 141 Rec. Hatch) (“I at our statute. Post prevent do not want to construction of Sen. dissent, by cited 408 n. The cases raising legitimate from claims. inmates however, that do not demonstrate Con- legislation prevent will not those This raised.”). § 1915(g)’s designa- strike being gress As other intended claims from concluded, potentially to reach meritorious is no doubt tion “[t]here courts have PLRA ... were claims. provisions that the of the

398 frivolous, malicious, in not

The dissent is of course correct because the action is level, that, at broadest “the to state a claim.” 200 F.3d ing fails at 667. litigation brought Day opinions PLRA’s ‘focus is to limit relies on from two other ” prisoners,’ authority, Allin, at Mont 144 by post (quoting 403 circuits Rivera v. (11th Cir.1998); Corp. Virginia, Pub. 199 F.3d F.3d 719 v. calm and Patton (4th Cir.1999)). broadly Center, A conceived Correctional Jefferson however, Cir.1998). imply, purpose does not Neither Rivera nor Patton, however, ap to a meat-axe intended use informs our to- decision day to The Su neither proach purpose. achieve because case involved a dis- Bock, preme opinion prejudice Court’s missal without for Jones failure S.Ct. L.Ed.2d state a claim. The dismissals without (2007), dissent, frequently analyzed cited in Rivera and Patton frivolousness, fully supports understanding our the were dismissals abuse judicial goal process, the PLRA. As the dissent itself and failure to exhaust Jones, using explains, language administrative remedies. The Rivera and “[although system our ‘remains com had legal Patton courts no occasion examine guaranteeing implications holdings mitted to their on case, fairly according ... are type claims handled of dismissal at in this issue law,’ ensuring ‘challenge lies in state a claim. the flood of nonmeritorious claims does Finally, the dissent relies a more submerge effectively preclude con Circuit, recent from the case Ninth ” allegations sideration of the with merit.’ Price, O’Neal 531 F.3d 1146 Cir. Jones, (quoting at 402-03 Post 549 U.S. at 2008). There, a panel divided concluded added). 910) A (emphasis application proceed a denial of an failure to IFP “bringing” constituted an action for an adjudication claim is not on the purposes §of 1915(g). The also of the v. Haigh, merits claim. Mann dismissal, held that however Consequently, a suit dis styled regardless whether it was missed without for failure to refile, rendered with leave counts as state a claim properly cannot be character noting strike. After “does nonmeritorious; ultimately ized as that de not distinguish between dismissals with simply termination has not been made. and without prejudice,” the court said that into “decline[d] read the statute

C. requirement by additional not enacted government 1154, Congress.” also cites one circuit 531 F.3d at 1155. Our opinion, however, Day Maynard, 200 F.3d holding today, does not an read (10th Cir.1999), 665 a held that additional requirement into the statute missal without a already implied is strike under not by Congress’ the PLRA. a Day per is Tenth Circuit use phrase familiar ... “dismissed opinion curiam no a analysis offers to to state claim.”2 An [for] fail[ure] un support holding; only qualified states that “a dismissal for failure to a state presumed operate dismissal without as a claim preju counts is strike, dice; long so as dismissal is made the addition of the “with prej- words reason, not, holding implied by legal meaning. For same our does well-established 27, suggests, post as the any II.A, dissent see at read part supra. See already into the words statute that are not

399 simply indisputably legal such is based on modify a dismissal meritless udice” also theory, power but the unusual necessary. pierce complaint’s the veil factual D. allegations dismiss those claims clearly factual whose contentions are holding Our that a dismissal with baseless. a prejudice for failure to state claim is out not, recognize, not a does resolve strike 327, Id. at 109 S.Ct. Examples for frivolousness ren whether claims factu- frivolous include those whose prejudice would count as a dered without “delusional,” nutty,” al are allegations “so However, nothing analysis in our strike. “wholly or fanciful” “unbe- simply for to state claim of dismissals failure Gladney lievable.” v. Pendleton Corr. Fa- suggests that dismissals frivolousness cility, 773, Cir.2002); 774 exempted from 1915(g)’s should be Hernandez, Denton v. 112 even designation, strike when dismiss 1728,118 S.Ct. L.Ed.2d 340 al rendered without 12(b)(6) contrast, “Rule au Indeed, Supreme detailed Court’s thorizes a court to a claim dismiss on the Williams, comparison in 490 Neitzke dispositive basis of a issue law.” 104 Neitzke, 490 U.S at 109 S.Ct. 1827. (1989), of dismissals for failure state procedure, operating “This on the assump 12(b)(6) claim Rule and dismissals under tion allegations that the factual com (the under 1915 IFP frivolousness true, litigation plaint are streamlines statute) meaningful makes clear that dif- dispensing discovery with needless types between two ferences exist these 326-27,109 Id. at factfinding.” S.Ct. 1827. dismissal. In Neitzke the Court consid- Although Supreme Court has subse IFP complaint ered whether an that fails 12(b)(6) quently allega made clear that the factual Rule complaint tions in a must make entitle automatically meaning frivolous within plausible merely ment and not to relief 109 the IFP at statute. Id. S.Ct. possible, Corp. Bell Twom see Atlantic concluding the two catego- 1827. In 544, 554-63, distinct, bly, 550 U.S. S.Ct. explained ries were Court “[wjhat (2007), Rule only L.Ed.2d is frivolous “where 12(b)(6) in law in does not countenance are dismiss arguable lacks an basis either als a com judge’s fact.” 109 S.Ct. 1827. The based on disbelief of Id. Neitzke, IFP plaint’s allegations,” Court also noted statute’s sua factual 1827; sponte provision, now U.S.C. U.S. at see also 1915(e)(2), Twombly, 550 U.S. at S.Ct. 1955. looking judges “District court to dismiss discourage designed largely grounds must claims on such look else of, judicial pri- and waste of Neitzke, legal support.” where for upon, vate resources baseless lawsuits at well- “[A] S.Ct. paying litigants generally do not if it pleaded complaint proceed even bringing of the costs of initiate because savvy judge proof a that actual of strikes suit of threat of and because the sanc- is that a alleged improbable facts bringing tions suits for vexatious under very unlikely.” recovery is remote and To Federal Rule of Civil Procedure 11. 556, 127 end, judges Twombly, 550 U.S. at this the statute accords not (internal omitted). only authority quotations a to dismiss claim that a help Neitzke makes clear dismissal for De’Lonta does not the dissent for First, review, two qualitatively frivolousness is of a different reasons. our court actually the district than a for failure to reversed court’s Rule character dismissal 12(b)(6) result, dismissal and remanded holding a claim. a our the case state As Thus, today proceedings. further should not be read indicate that a De’Lonta hardly is complaint an of a for frivolousness is rendered illustration merit,” “wholly prejudice type lack[s] avoid a of com- without should strike plaint that designation. sought the PLRA to address.

Second, because we reversed the district dismissal, court’s we had no cause to ad- E. dress the appropriateness the district court’s today fully Our decision is decision to dismiss De’Lonta’s suit consistent prejudice.” extent, “without Congress’ To the how- goals reducing pris- with dual ever, and, time, that a court litigation truly the same district pre- oner at unable any conceive of serving meaningful to the set facts under a access courts for which plaintiff relief, prisoners potentially would be entitled to meritorious In district court err in expressing designating claims. would this concerns 408-10, Courts, contrary, dissent, prejudice. dismissal to be post posits without one, including a district have held that situation court when complaint prisoner’s complaint through confronted with a is incurable amend- ment, “wholly properly merit” and dismissal is lack[s] dismisses the rendered with prejudice complaint prejudice and without leave to See failure to amend. Inc., a claim. Cozzarelli appealed, Inspire Pharms. (4th Cir.2008) this court appeal pursu- (affirming entertains missal with Sugar Corp. ant Domino where Sugar amendment futile); also, Local would have e.g., Workers Union 10 F.3d been see Cal., Cir.1993), and affirms the Gadda v. State dismissal. Bar (9th Cir.2007) (“Because The dissent allowing contends that failure to count futile, the district amendment be court’s dismissal as a would we strike hold would undermine district court goals properly the PLRA. dismissed [plaintiffs] argument To illustrate its the dissent in- claims with and with- amend.”). out vokes De’Lonta v. leave to Angelone, 330 F.3d 630 (4th Cir.2003). Rather than compelling

De’Lonta, however, does substanti- interpretation overbroad of the term “dis ate dissent’s concerns. De’Lonta a miss” when used in the context of failure prisoner brought §a 1983 claim alleging to state a claim 1915(g), sug adequate denial of gest medical treatment De’Lonta instead counsels that courts violation of the Eighth Amendment. Al- remain mindful of the distinction between though the district an unqualified “unable to dismissal for failure to state conceive set of facts under which claim dismissal without Eighth Amendment would entitle” potentially claim, the While a par meritorious relief, plaintiff ticularly by nevertheless dismissed pro litigant, se should not unqualifiedly to avoid dismissed for failure to state “complicating any future actions with is- truly unless its deficiencies are incurable, sues collateral or claim estoppel preclu- Holshouser, Bolding see 461, sion.” 330 F.3d at Cir.1978), F.2d 464-65 such entirely proper is States and the United States Con- unqualified dismissal United claiming reviewed the claim and under 42 gress court has U.S.C. when substantively meritless. of provi- found that AEDPA’s statute limitations sion, 2244(d), that the com- court has determined 28 U.S.C. a retroactive Once unamendable, a dismissal plaint truly law and is thus unconstitutional. As the concluded, prejudice correctly is of little benefit to without district viable Congress cannot be made im- litigant, the claim States and its are United through Similarly, reformulation. dismiss- mune from suit this instance. complaint without al of such a sovereign As a the United the PLRA’s of reduc- goal works defeat “is immune from suit save as it States meritless law- ing substantively prisoner ... and of consents be sued the terms to file because it allows suits its consent be sued court define again. When the same merit-less jurisdiction that court’s to entertain the a com- court is confronted with district Testan, suit.” United States tech- that fails not because of some plaint L.Ed.2d 114 lack because its claims deficiency nical but (internal omitted). quotations merit, complaint legal properly this sovereign States has not waived United is, to state missed for failure claim—that suits, immunity for constitutional tort such of. finally prejudicially disposed Winner, one as the here. Martinez detracting Congress’ Rather than from (10th Cir.1985). 424, 442 Similarly, F.2d litiga- reducing meritless goal sovereign immunity this extends to the tion, preserve abil- today’s will decision Congress States when it is sued as United distin- ity meaningfully of district courts to government. a branch See Keener pled potentially but guish poorly between U.S., Congress simply meritorious claims those Cir.1972). “are Congress And members Any prisoner lack merit. whose for liability immune from their actions category penalized falls the latter will be ” ‘legislative sphere.’ within the Eastland the PLRA intended. with strike as Fund, v. U.S. Servicemen’s (1975); F. I, 6,§ Art. cl. 1 (Speech see also prior six actions McLean has had civil Clause). result, the courts Debate As four of dismiss- dismissed. Because those jurisdiction against lack to entertain a suit were als without States and the States United United claim, only two state a he has accrued challenges enactment 1915(g). Accordingly, strikes under AEDPA. him allowing proceed clerk’s order appeal prepayment full of fees without IV. McLean will be allowed to stand. Because striker,” necessary is not a is not “three sum, In that the dismissal of hold us to his claim that he is consider prisoner’s complaint danger physical under imminent serious does count as a failure state a claim injury. § 1915(g). This strike 28 U.S.C. holding that McLean does not have means

III. strikes under and that he three proceed We at last to merits of can in this turn considering McLean fees. appeal. prepayment McLean’s has sued 402 1914(a). claim, Schedule”), we hold substance McLean’s neous Fee Notwith- jurisdiction fact,

that lack under the courts this has standing “Congress long reg- principles sovereign immunity to enter- indigent litigants ulated the access of judicial tain against system,” his suit United States the federal Roller v. Gunn, Congress. Accordingly, 227, Cir.1997), district 230 dismissing complaint is court’s order his and it has authorized and cir- the district cuit courts to waive the fees for most AFFIRMED. who individuals are unable afford them (“IFP”) in granting pauperis SHEDD, Judge, concurring in Circuit forma Specifically, Congress status. enacted the part dissenting part: in statute, IFP now codified 28 U.S.C. McLean, Quentin a Virginia inmate and 1915, “to indigent litigants ensure that frequent litigant, filed this case rights civil meaningful have access to federal against the United States of America and Williams, Neitzke courts.” Congress, asserting United States that 1827, 104 L.Ed.2d 338 a provision AEDPA is unconstitutional. (1989). However, “there is no absolute The district complaint court dismissed the status,” Deeds, ‘right’ IFP Altizer v. under 28 U.S.C. 1915A for failure to Cir.1999), F.3d and “Con- state a claim can be relief gress no more compelled guarantee granted. majority’s summary theAs dis- free access to federal than it courts is to position of appeal the merits of McLean’s them,” Roller, provide unlimited access to illustrates, clearly the district court did not at 231. Thus, err in dismissing the complaint. Congress originally believed the extent reach the merits IFP statute would not to a lead rise appeal, I agree the district court’s litigation, vexatious but over time “the However, order I should be affirmed. dis- noble purpose statute’s been has threat- agree majority’s with holding that Mc- aby ened flood of merit-less lawsuits.” Lean is not a “three striker” under 28 prisoners Id. at “Unsurprisingly, § 1915(g). view, U.S.C. In my hold- this proved responsible for litiga- much ing, which from majority’s flows con- tion.” Id. As the Supreme recently Court clusion cases are noted: missed without for failure to

state a claim do not count as “strikes” litigation Prisoner continues to “account 1915(g), is based on an incorrect filings” for an outsized share feder- reading of the statute. with Consistent al nearly district courts. courts, opinions of other circuit I percent be- of all civil cases filed federal lieve the most natural way to read courts nationwide were com- written, 1915(g) is to read it as it is plaints challenging prison conditions or the statute on its face claiming does not limit its civil rights violations. Most of scope only merit; to dismissals cases many these have no are

frivolous. I Bock, Jones v. U.S. S.Ct. Ordinarily, litigants must pay $350 166 L.Ed.2d 798 (quoting file a civil in a federal district v. Ngo, 548 94 n. Woodford (2006)). court and to file a notice $450 165 L.Ed.2d Al- a federal of appeals. See 28 U.S.C. though legal system our “remains commit- (“Court §§ 1913 note of Appeals Miscella- guaranteeing ted to that prisoner claims

403 law,” pauperis to in statute to avoid fairly according handled the ... are forma Green, that the ensuring filing lies in fees.” 454 F.3d at “challenge paying the claims does encouraging of nonmeritorious practice flood 407. This “risked consid- effectively preclude submerge might that these fees otherwise have suits merit,” allegations the Butner, of eration Nagy v. EMC 376 deterred.” Jones, at (4th Cir.2004). 549 U.S. PLRA 255 F.3d prisoners § 1915 to to require amended proliferation prison-

“Finding that the fee, filing full “IFP status pay the and now to the significantly litigation due er filing the simply prisoner pay allows filing of economic disincentives lack Altizer, cases,” Roller, at at 230- in installments.” 191 F.3d 107 F.3d fee meritless 1915(b)).1 in challenge (addressing Rejecting that “Congress addressed 544 Reform Litigation aspect PLRA challenge [Prison the constitutional to this Act],” enacting variety PLRA, “a of reforms by we commented: claims and to filter out the bad designed Requiring prisoners to make economic Jones, good,” facilitate consideration of about filing decisions lawsuits does not 203-04, Simply at 127 S.Ct. 549 courts; merely deny access Congress decided that put, “[w]hat places indigent prisoner position ... fewer and better country needs by similar to faced those whose suits,” id. 127 at S.Ct. prisoner by of living paid basic costs are not litigation PLRA’s “focus is to limit and the Those living prisons state. outside of Pub. brought by prisoners,” Montcalm every they file a time cannot lawsuit Va., 199 F.3d Corp. v. Commonwealth of or In- imagined slight. suffer real (4th Cir.1999), and “to remove stead, they importance weigh must courts from the business federal district resorting legal redress before to the day-to-day operation supervising system. prisoner If a determines Hutto, Cagle v. 177 F.3d prisons,” spent funds are on other his better (4th Cir.1999). 253, 257 filing rights items rather than a civil “impos purpose, the PLRA To effect suit, “he has an implied demonstrated on a rather substantial limitations es some evaluation of that that the suit” courts action,” ability to initiate a civil prisoner’s entitled honor. should be Young, 454 F.3d Green Roller, (quoting F.3d at Lumbert Cir.2006), provisions “contains Corrections, Dept. v. Illinois filing discourage prisoners from should (7th Cir.1987)). 257, 260 succeed,” unlikely that are Craw claims 1915(g), The PLRA also created Britton, 574, 596, 118 ford-El provision the “three now strikes” 1584, 140 As we L.Ed.2d 1915(g)provides: issue. Section “Many the PLRA have noted: sections of to the IFP stat simply are amendments bring In no event shall a a civil prisoner ” ute .... Anderson v. XYZ Correctional judgment a civil action Servs., Inc., 682 n. Health if action or this section proceeding under Cir.2005). has, prior prisoner on 3 or more occasions, while or detained example, “[p]rior the enactment incarcerated For PLRA, facility, ap- use an action or prisoners brought were able to so, 1915(b)(4) judgment provides "[i]n no criminal for the reason 1. Even prohibited prisoner from no no means assets and event shall has pay partial fee.” bringing appealing a civil or which to initial a civil action or gardless a court of the United States that of whether the peal seeks First, grounds that it proceed was dismissed on the IFP. the PLRA created frivolous, malicious, or fails to a 1915A, § state pertinent part which in requires may upon granted, claim which relief be the district docketing, court “before if feas- unless the is under imminent or, event, any ible in as soon practicable as danger physical injury. (1) serious after docketing” complaint to screen “a in a which a prisoner civil action in seeks 1915(g) § have noted that We “does little redress from a offi- governmental entity or apply than rules to prison- more the same governmental cer or a employee entity” that apply everyone brings to else who ers any a Altizer, dismiss such or action appeal.” an or 191 F.3d at portion “frivolous, thereof mali- In other words: cious, or a claim upon fails to state which Although 1915(g) section attaches conse- may Second, relief granted.” be actions, ... quences past to [it] does not 1997e(c)(l),4 PLRA § created U.S.C. prisoner’s a rights, affect substantive which pertinent part requires and does not block his her access to trict court “on own motion or on the may A prisoner pursue the courts. still motion of a party” any dismiss action any qualifying claim after three dismiss- brought with als, respect prison but conditions he or she do so without must by prisoner under federal a law confined aid of the procedures. [IFP] any jail, other prison, or correctional facili- at 546 n. 11 (quoting Adepegba Id. ty “if the court is satisfied that the action Hammons, (5th Cir.1996)).2 103 F.3d frivolous, malicious, fails to [or] Additionally, the PLRA increases the claim relief can granted.” which be obligation of federal courts dismiss cer- tain litigation. “Before the “separate, Each of these but interrelat PLRA, the pauperis provision forma Price, ed” PLRA provisions, O’Neal v. § 1915 at [then codified 28 U.S.C. Cir.2008), in 1915(d)], § applicable most prisoner liti- structs courts to “dismiss” actions on the gation, permitted sponte sua grounds three that constitute “strikes” if an only action was frivolous or mali- (ie., frivolous, malicious, § under Jones, cious.” claim). fails to state a Because of their However, 910.3 PLRA amended similarity, may obvious courts have the 1915(d), § recodified as option particular in a case dismissing 1915(e)(2)(B), by adding (among other IFP prisoner litigation failure to state things) that the courts should dismiss a claim than under more one of these IFP action that to state a “fails claim on See, provisions. e.g., Michau v. Charles relief granted.” C., ton County, S. 434 F.3d 725 Cir. 2006) (in Similarly, the PLRA also created two holding the district court provisions additional authorizing the sum- erred in summarily dismissing plain mary dismissal of prisoner litigation tiffs complaints re- to state Hernandez, Our court has a "three similar strikes” rule mandamus, prisoners seeking pro- writs 118 L.Ed.2d 340 hibition, extraordinary or other relief. See 21(c)(2). Cir. R. 4th 1997e(a) requires prisoners 4. Section ex- pris- haust administrative remedies within the 3. The district courts had discretion under on before action. a civil 1915(d) to dismiss a frivolous or malicious action with or See Denton Green, liti- the IFP construction. 454 F.3d at 408. under 1915A because See Using guide, common as a “prisoner,” we nonetheless sense gant was not Kofa (4th Cir.1995) I.N.S., the dis- because affirmed the dismissals (en banc), step interpreting “[o]ur had also relied first trict 1915(e)(2)(B)). speaking, statute is determine whether the lan Generally guage plain unambigu at issue has a provisions, under these meaning regard particular as Federal Rule of Civil ous as well 12(b)(6), case,” in the qualify dispute would Robinson v. Procedure Shell Oil Co., 1915(g). § 519 U.S. 117 S.Ct. 136 “strike” under We determine the “The overriding goal noted: As have “plainness ambiguity statutory lan is pauperis complaints in policing forma by ... guage language reference the payment deferred mech to ensure that the itself, specific context in 1915(b) §of does not subsidize suits anism used, language is and broader context prepaid costs would administrative whole,” of the statute id. 117 as at Nagy, 376 F.3d otherwise have deterred.” ordinarily and 5.Ct. “we resist read 1915(d), § and in amending at 257. ... ing words a statute into that do not 1915A(b)(1), and creating 1915(g), §§ face,” States, on its appear Dean United 1997e(c)(l), Congress clearly viewed dis — —, U.S. 173 an for failure to state a claim as missal (2009) (internal 785 quotation L.Ed.2d of its efforts to curb important part omitted). inquiry marks “Our cease must prisoner number meritless lawsuits. Cf. statutory language unambiguous if the (“Before Green, 454 PLRA F.3d at 408 statutory and the scheme is coherent enacted, requirement was no exhaustion Robinson, consistent.” at an applied By imposing §to actions. (internal quotation marks requirement pris exhaustion actions omitted). of their challenging oners conditions confinement, clearly viewed ex Congress important part

haustion of its efforts as A. to curb of frivolous lawsuits the number (citations previously We have not this addressed brought by prisoners.” omitt ed)).5 published in a opinion, issue but other circuit courts held have that dismissals

II prejudice without count as strikes under O’Neal, See, specific 1915(g). e.g., § raised F.3d at issue we have (“Because 1915(g) § a dis- current sponte this sua whether distinguish failure to PLRA does prejudice missal without not between prejudice, [prior under missals with and without claim counts a strike 1915(d) statutory precedent] § § 1915(g).6 This is a matter of does detract from undoubtedly Congress statutory the Su- was aware of ter of construction is untenable.” Neitzke, 109 S.Ct. 1827. preme decision in in which Court’s Court was not nec- held that 1915(d) § essarily frivolous under because operative “dis- 6. The word missed,” Court failed to state a claim. The Throughout opinion, Neitzke I refer despite apparent appeal (e.g., un- observed that the word in various forms "dismissed” 1915(d) "dismissal”). using Substantively der to state a claim failure "dismiss” issue, pruning purposes meritless "as broadbrush means of this there is no differ- docket, complaints mat- word. the federal as a ence in form of the from determining dismissal conclusion without whether the strike.”); as a Day count rejected We pris- frivolous. (10th Cir.1999) Maynard, 200 F.3d 665 argument oner’s affirmed the dismiss- (stating that “a dismissal Notably, al. we stated we did not strike, long counts as a so as the dismissal think “that intended a frivolous, is made because the action is 1915(e)(2)(B)® of the in forma claim.”). malicious, or fails to state We pauperis operate statute to as a dismissal similarly, have held albeit in non-prece prejudice.” F.3d at 258. There- opinions. dential unpublished See fore, we held that the “remain[ed] Watts, Vaughan 305 Fed.Appx. free paid complaint to file a with these (4th Cir.2009) (noting that 958-59 the dis added). same allegations.” (emphasis Id. trict court’s 1915A to state a claim consti B. prisoner’s tuted the third strike under 1915(g) plainly Section does not distin- Norton, § 1915(g)); Ballenger 238 Fed. guish between dismissals with and without denied, (4th Cir.2007), Appx. cert. Rather, prejudice. it mandates that ab- — —, 128 S.Ct. sent imminent a danger, may not (2008) (affirming the district file, in, or appeal judgment a civil action § court’s 1915A order both dismissed under “if prisoner has, the IFP statute the without prejudice complaint the for failure occasions, on prior 3 more while incar- to state a claim and deemed the case a cerated any facility, or detained in brought § strike under 1915(g)). action or in a court of the United Green, In we did consider and address States that on grounds was dismissed the the issue whether “routine dismissal” frivolous, malicious, it is or fails to 1997e(a) § for failure to exhaust state a claim which upon may relief be administrative remedies constitutes granted....” Notwithstanding § 1915(g)’s § strike for purposes 1915(g). We held regarding silence “prejudice,” majority the that such a dismissal does not constitute a reads it as unambiguously limiting un- the “[bjecause strike, reasoning that a dismiss- qualified word when coupled “dismissed” al for failure to exhaust is not listed in with phrase the to state “fails claim § 1915(g), it would improper be for us to relief granted” to mean “dis- read it into the statute.” 454 F.3d at 409. prejudice.”7 missed with In Nagy, we although did not consider The majority grounds reading this on its what § constitutes a strike under 1915(g), phrase view that complete “the has a well- meaning did address unquali- of the legal meaning” established Congress fied word as it “dismiss” is used in 1915(e)(2)(B)®, presumably § § incorporated into 1915(g). pursuant which the Majority Op., district court For prisoner’s support, had dismissed a IFP complaint majority appeal, as frivolous. On notes that the “failure to state a argued ground that the district court claim” 1915(g) patterned erred considering sought by amount after Federal Rule Civil Procedure issue, analyzing In majority attempt holding has Nagy to reconcile our interpretation limited its of the word "dis- that a dismissal frivolousness under only 1915(e)(2)(B)(i) missed” to address dismissal for prejudice. failure be without must However, to state a purposes my analysis claim for relief. For require even if the would opinion, majority's analytical I will reading utilize the word "dismissed” in a broader context, Accordingly, framework. necessary Nagy preclude is not my analysis. does not 12(b)(6) specified, ordinarily unless has otherwise discretion to decide whether 12(b)(6) action, that a Rule presume including to dismiss an for failure courts a claim is “both claim, state missal state a with or without ... rendered Ass’n, merits and judgment Hosp. Carter Comm. Norfolk at 396. Majority Op., prejudice.” Cir.1985); see also this, majority that “[i]t From observes Brake, Payne v. type prior

follows that Cir.2006). contemplated by failure to Thus, preju- dismissals with and without adjudi- is one constituted an failure to dice for state a claim for relief the merits prejudiced cation on “dismissals,” types are two distinct but subsequent with the of a they operate result for achieve the same allegations.” Majority Op., at 396. same purposes specific of a Congress civil case. 12(b)(6) a Rule Because undoubtedly was aware of this fact when an adjudication is not on the unqualified used the word “dismissed” merits, majority that it does concludes 1915(g). Corp. See Keene v. United and, § 1915(g) consequently, not fall within States, as a does not count strike. 124 L.Ed.2d 118 (noting that “we usage, general unquestion there is apply presumption ably a distinction dismissals with between of these judicial interpreta- aware earlier prejudice, before and without but the issue and, them”). effect, tions adopted the plain language is whether of us plain § Based on the language 1915(g), of § makes the relevant. 1915(g) distinction which draws no distinction between the complete A with “is two well-established types of dismissals for by the the adjudication presented issues relief, failure to state claim for the most and is a bar action pleadings to a further way natural to read unqualified word parties.” v. Edison between Harrison is that encompasses “dismissed” it both Stores, Inc., 530, Apparel Bros. Although types. majority reads 1991) (4th (citation punctuation Cir. actually stating word “dismissed” as “dis- omitted). Conversely, a dismissal without prejudice,” missed with simply are not to prejudice “operates parties leave the as liberty limiting at to add those words to had all.” brought if no action been See, Cases, e.g., the statute. More CODESCO, 807, Dove v. 569 F.2d 809 n. 3 Less, Each v. Containing Six Jars Jam Cir.1978). distinction, Despite this States, United 340 U.S. 71 S.Ct. really pertains only preclu to “claim (1951) (“[0]ur 515, problem 95 L.Ed. 566 preclusion, collectively and issue ... sion ” Congress to construe what has written. judicata,’ Taylor referred to as ‘res v. — all, Congress After expresses purpose 2161, —, Sturgell, U.S. 128 S.Ct. It is for by words. us to ascertain —nei- 2171, 171 (2008), types both subtract, ther to add nor neither to one important dismissal share characteris distort.”); delete nor States v. United specific tic: the termination action Coombs, 72, (or see, 80, 72, claim), 12 Pet. 9 L.Ed. e.g., United States Cali (1838) (noting general “upon fornia, 507 U.S. 113 S.Ct. (1993) (“A interpretation, principles with where the 123 L.Ed.2d 528 general, and words are not at [is] out terminates the action Court liberty insert rights concludes the of the in that limitations not called for parties action.”) (citation sense, particular punctua objects, or the or the mis- omitted). enactment”). Moreover, tion a district court of the chiefs As the Ninth not so in Congress ly. Congress plainly “If had did do stated O’Neal: Circuit dismissals with enacting 1915(g).8 intended to limit strikes to have said so.” 531 F.3d prejudice, could 9; Immigra- n. see also Jama at 1154 C. Enforc., 543 U.S. and Customs

tion 160 L.Ed.2d 708 Although plain language (“We lightly do not assume case, 1915(g) resolves I note as a require- adopted text has omitted from its practical matter that courts often district ap- intends to ments that nonetheless including dismiss those cases— ply.”). wholly lack merit —for failure a claim prejudice simply avoid majority correct that courts ordi burdening potential with res unqualified orders of dis narily construe judicata implications that a dismissal with failure to state a claim for relief missal for See, prejudice may e.g., cause. De’Lonta Federal Rule of being Angelone, Cir. 41(b), which “sets forth Civil Procedure 2003) (noting that the district court found ... the im determining a default rule that it was unable to conceive of set of dismissal,” port involuntary] Semtek [an plaintiff facts would entitle the Corp., Inc. v. Martin Int'l. Lockheed relief, but it nonetheless dismissed the 497, 503, 121 S.Ct. 149 L.Ed.2d under (2001), mandates such construction. 1915(e)(2)(B) “complicating any to avoid However, no there is indication Con future actions with issues of collateral es gress principle intended that of construc toppel preclusion”). or claim beyond Under apply specific tion to context of itself, view, certainly majority’s types the rule those of cases do not Indeed, § 1915(g). it is notable that al count as strikes though (upon majority Rule 12 which the simple reason the district court exer relies) actually question silent on the in cised its discretion a manner to benefit prejudice, expressly Rule differentiates prisoner by eliminating subsequent prej between dismissals with and without judicata challenge. res Congress udice. does not enact the Fed can to a particularly This lead curious Procedure, eral Rules of but it does Civil given concerning appellate result our rules participate rulemaking process. in the jurisdiction preju- and dismissals without Guides, Inc. v. Business Chromatic Com an Although dismissing dice. order com- Inc., Enters., 533, munications plaint generally without appealable, final an final and such order is Congress To the extent that if appealable grounds and for dismissal involved the creation of Rule clearly plaintiff indicate could not recognized the difference expressly be amend the to cure the defects preju dismissals with and without tween that warranted the dismissal. Domino dice, and fact clear that this makes when Sugar Corp. Sugar Workers Local Un- distinguish intends to between (4th dismissals, types express- it does so ion 10 F.3d 1066-67 Cir. opinion, clearly support majority’s For reasons set forth in this does not deci- I, particularly I Part believe it is evident that sion. legislative purpose underlying 1993). gress’ goal prisoner clear to reduce appealabili litiga- “examine the We must tion, long at least so as district courts without based ty of a dismissal continue to err on the side of caution and facts of the case in order specific on the complaints prej- dismiss meritless re litigation and against piecemeal guard However, majority’s opinion udice. Chao v. Rivendell appeals.” petitive may prompt judges well district who want Inc., Woods, Cir. (and meaningless to curb excessive often 2005); Inc. v. Mi Computer, see also GO time-consuming) prisoner litigation Cir. Corp., 508 crosoft and, instead, that practice discontinue 2007). dismissing those complaints start De’Lonta, applied the Domino appeal an from an Sugar permit rules to dismissing prisoner’s complaint order Ill 1915(e)(2)(B) prejudice under a claim upon for failure to state majority counting states that noted, the granted. relief could be As missals without for failure to com- prisoner’s district court found “impose state a claim as strikes would merit, wholly lack but dismissed plaint to prisoners’ indiscriminate restrictions” on prejudice to avoid bur- the case without courts, Majority Op., access to the federal judicata im- dening prisoner with res nothing but there is at all indis- view, majority’s plications. Under First, regard. criminate this enact- that a in the sit- despite prisoner the fact ing 1915(g), Congress has restricted a unsuc- presented uation De’Lonta prisoner’s sys- access to the federal court cessfully litigate patently of a status, only prisoner if the IFP tem seeks way all the to the Su- lawsuit baseless only previously if federal courts have Court, would not preme prior three or more actions for dismissed on the mere for- count as a strike based section, in that specified the bases court labeled the tuity that the district only if the is not under imminent prejudice.” “without The fact danger physical injury. of serious Even occur scenario did not restriction, with this is not (because we reversed the dis- De’Lonta courts; instead, barred from federal he missal) majority’s is of no moment. The ordinary must costs of simply bear exclusion of dismissals without categorical litigation litigants. like all other non-IFP failure to state a claim com- prejudice for Second, although majority concludes in the the result that pels Congress that did not intend for dismissals I described cannot count as scenario have a claim to count as ultimately af- a strike if the dismissal is § 1915(g), strikes under no one real- would firmed. istically Congress contend that lacks the power to count those dismissals as strikes. majority

Although disagree I with the matter, I do not forecast Although appears on this McLean to have had necessarily prolifera- cause a decision will actions for failure to state a six dismissed As I prisoner litigation. of meritless claim while he has been incarcerated tion noted, already litigation judicial system Virginia, description his have our story. history present the entire problem. I do believe that the does faces litigant, attempting to prolific As with majority’s decision will not advance Con- history from litigation McLean’s TV catalog task, simple is not a but court records foregoing, on the I concur in Part Based available records quick review of the majority opinion, III of the and I dissent type prisoner- that he is the shows from the remainder. had mind when litigant example, enacted the PLRA.9 For this case Virgi-

arises from the Eastern District nia, unsuccessfully pur- McLean has where However, actions. McLean

sued several actually litigious much more has been Virginia, District of which has Western America, UNITED STATES of him designated as a “three striker” under Plaintiff-Appellee, 1915(g).10 addition to McLean’s dis- for failure to state a claim noted missals majority, prob- most if not all of which SMITH, Cordell Lester Defendant- ably designated could have been “with Appellant. prejudice,” designation his as a three-strik- No. 07-5123. appears summary er to have led to the dismissal without numerous Appeals, United States Court of other cases in the District. Mc- Western Fourth Circuit. Lean has also had cases dismissed without Argued March prejudice in the Western District under § 1997e for failure to exhaust administra- May Decided remedies, unsuccessfully tive and he has pursued multiple appeals in this Court and Supreme

in the Court. majority agree and I that the dis- trict court’s dismissal order for failure to

state a claim in the now before us should be That affirmed. order does not thus,

specify prejudice; that it is without as a will count strike even under the ma- jority’s majority view. Given

agrees previ- that McLean has at least two strikes,

ous McLean should hereafter be regardless deemed three-striker majority’s holding whether the regarding § 1915(g)is correct or not. appears litigated Virgi- appealed designat- McLean to have McLean has one order “Quentin three-striker, nia under the name McLean” and ing placed him as a and we have “Quentin Additionally, McLean-El.” abeyance pending appeal. “Quentin Westlaw search that a indicates Smith, See McLean v. Dr. C.A. No. 7:07cv584 “Quentin McLean” and a McLean-El” also (W.D.Va. 2007) (No. Dec. 08-6180 4th litigated unsuccessfully in the of Co- District Cir.). lumbia federal courts the 1990s.

Case Details

Case Name: McLean v. United States

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 21, 2009

Citation: 566 F.3d 391

Docket Number: 06-7784

Court Abbreviation: 4th Cir.