Lead Opinion
OPINION
The Prison Litigation Reform Act of 1996 (PLRA or Act), Pub.L. No. 104-134, 110 Stat. 1321-71 (1996), limits the ability of prisoners to file civil actions without prepayment of filing fees. When a prisoner has previously filed at least three actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, the Act’s “three strikes” provision requires that the prisoner demonstrate imminent danger of seri
I.
The PLRA requires a district court to engage in a preliminary screening of any complaint in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a) (2000). The court must identify “cognizable claims or dismiss the complaint, or any portion [thereof, that] is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(l) (2000). The “three strikes” provision of the PLRA, § 1915(g), denies in forma pauperis (IFP) status to any prisoner who:
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.
28 U.S.C. § 1915(g) (2000).
On August 3, 2006, McLean, a state prisoner in Virginia, filed a pro se action under 42 U.S.C. § 1983 against the United States and the United States Congress in the Eastern District of Virginia. He challenged as retroactive, and therefore unconstitutional, § 2244(d) of AEDPA, which imposes a statute of limitations on a state prisoner seeking to file a habeas corpus petition in federal court. See 28 U.S.C. § 2244(d). On the same day, McLean filed a motion for leave to proceed IFP. The district court proceeded directly to the preliminary screening of McLean’s complaint as required by § 1915A(a) and dismissed it for failure to state a claim. McLean v. United States, No. 2:06-cv-00447 (E.D.Va. Sept. 12, 2006). The court concluded that McLean’s motion to proceed IFP was moot in light of the dismissal under § 1915A.
After filing a notice of appeal, McLean filed a motion in this court to proceed IFP. Because of McLean’s prisoner status our clerk’s office treated his IFP motion as moot and required him to file a separate application — on our form — for leave to proceed without prepayment of fees in accordance with the PLRA.
The PLRA application form required McLean to state whether he had, while incarcerated, filed three actions or appeals that were dismissed as frivolous or malicious or for failure to state a claim. McLean responded in the affirmative and, as required, listed the names and docket information for five such actions. The PLRA application form then instructed McLean to state “facts in support of any claim” that he was “under imminent danger of serious physical injury.” Appel
My continue [sic] incarceration will subject me to psychological turmoil, worriation [sic], disturbances with thoughts— my deteriorating healthcare problems inadequately treated, exposures to unhealthy environment repeated government employees [sic] corruption and grown hate againts [sic] me, and loss of equality and rights of men Art. 1 sec. 1.
Id.
Once McLean’s PLRA application was filed, the clerk entered an order conditionally granting him leave to proceed without full prepayment of fees. The order stated that it was “subject to rescission or revision at any time should the court determine that appellant has had three cases dismissed as frivolous, malicious, or for failure to state a claim and appellant is not under imminent danger of serious physical injury.” McLean v. United States, No. 06-7784 (4th Cir. Nov.29, 2006) (order conditionally granting appellant’s motion for leave to proceed without prepayment of filing fees).
A review of McLean’s litigation history reveals that while incarcerated in Virginia, he had filed six non-habeas actions that were dismissed on grounds that might qualify them as strikes under § 1915(g). Specifically, all six actions were dismissed for failure to state a claim upon which relief can be granted. Four were dismissed without prejudice and the remaining two were simply dismissed, with one order noting that the dismissal counted as a strike for PLRA purposes.
II.
McLean’s present appeal challenges the dismissal of his § 1983 action contesting the enactment of AEDPA’s statute of limitations. We reach the merits of his appeal only if he is eligible to proceed without prepayment of fees under § 1915 (the IFP statute). To resolve the eligibility issue, we must determine whether he has fewer than three prior dismissals that count as strikes or, if not, whether he is in imminent danger of serious physical injury. The determination of whether McLean is a three-striker under § 1915(g) turns on whether a dismissal without prejudice for failure to state a claim counts as a strike. We conclude for the following reasons that such a dismissal is not a strike.
Section 1915(g) includes in its list of strikes an action or appeal “that was dismissed on the grounds that it •... fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). In interpreting this provision, we must first determine whether its language “has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co.,
Our task here is to determine whether Congress intended an action or appeal “that was dismissed on the grounds that it ... fails to state a claim upon which relief may be granted” to count as a strike under 28 U.S.C. § 1915(g) if that dismissal was specifically designated to be “without prejudice.” The language “fails to state a claim upon which relief may be granted” in § 1915(g) closely tracks the language of Federal Rule of Civil Procedure 12(b)(6). Compare Fed.R.Civ.P. 12(b)(6) (listing “failure to state a claim upon which relief can be granted” as grounds for dismissal). When Congress directly incorporates language with an established legal meaning into a statute, we may infer that Congress intended the language to take on its established meaning. United States v. Langley,
When the word “dismissed” is coupled with the words “[for] failure] to state a claim upon which relief may be granted,” the complete phrase has a well-established legal meaning. Courts have held that, unless otherwise specified, a dismissal for failure to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with prejudice. See Federated Dep’t Stores, Inc. v. Moitie,
It follows that the type of prior dismissal for failure to state a claim contemplated by § 1915(g) is one that constituted an adjudication on the merits and prejudiced the filing of a subsequent complaint with the same allegations. In contrast, a dismissal without prejudice for failure to state a claim is not an adjudication on the merits, Mann v. Haigh,
B.
Although our conclusion as to the unambiguous meaning of an unqualified dismissal for failure to state a claim in the context of § 1915 is sufficient to end our inquiry, we address the government’s and the dissent’s assertions that the legislative purpose of the PLRA supports a contrary interpretation.
The impetus behind the enactment of the PLRA was a concern about the “endless flood of frivolous litigation” brought by inmates. 141 Cong. Rec. S14,418 (1995) (statement of Sen. Hatch). The Act’s proponents expressed dismay because these frivolous suits were “draining precious judicial resources.” 141 Cong. Rec. S7526 (1995) (statement of Sen. Kyi); see also 141 Cong. Rec. S14,418 (1995) (statement of Sen. Hatch) (“The crushing burden of these frivolous suits makes it difficult for courts to consider meritorious claims.”).
The purpose of the PLRA was not, however, to impose indiscriminate restrictions on prisoners’ access to the federal courts. Senator Kyi emphasized that the Act would “free up judicial resources for claims with merit by both prisoners and nonprisoners.” 141 Cong. Rec. S7526 (1995) (statement of Sen. Kyi); see also 141 Cong. Rec. S14,627 (1995) (statement of Sen. Hatch) (“I do not want to prevent inmates from raising legitimate claims. This legislation will not prevent those claims from being raised.”). As other courts have concluded, “[t]here is no doubt that the provisions of the PLRA ... were meant to curb the substantively meritless prisoner claims that have swamped the federal courts.” Shane v. Fauver,
Because a dismissal without prejudice for failure to state a claim is not an adjudication on the merits, treating such a dismissal as a strike would undermine Congress’s intent. A potentially meritorious but inartfully pleaded claim by a prisoner that is dismissed without prejudice for failure to state a claim is wholly distinct from a claim that is dismissed as frivolous, malicious, or substantively meritless. The former claim might be revived by competent pleading, but the latter cannot. As the Second Circuit explained:
Section 1915(g)’s mandate that prisoners may not qualify for IFP status if their suits have thrice been dismissed on the ground that they were ‘frivolous, malicious, or failfed] to state a claim’ was intended to apply to nonmeritorious suits dismissed with prejudice, not suits dismissed without prejudice for failure to comply with a procedural prerequisite.
Snider v. Melindez,
The dissent nevertheless contends that it is “evident” that the “legislative purpose underlying § 1915(g)” does not support our construction of the statute. Post at 408 n. 8. The cases cited by the dissent, however, do not demonstrate that Congress intended § 1915(g)’s strike designation to reach potentially meritorious claims.
C.
The government also cites one circuit court opinion, Day v. Maynard,
Finally, the dissent relies on a more recent case from the Ninth Circuit, O’Neal v. Price,
D.
Our holding that a dismissal without prejudice for failure to state a claim is not a strike does not, we recognize, resolve whether a dismissal for frivolousness rendered without prejudice would count as a strike. However, nothing in our analysis of dismissals for failure to state a claim suggests that dismissals for frivolousness should be exempted from § 1915(g)’s strike designation, even when the dismissal is rendered without prejudice.
Indeed, the Supreme Court’s detailed comparison in Neitzke v. Williams,
is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.
Id. at 327,
In contrast, “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.” Neitzke, 490 U.S at 326,
E.
Our decision today is fully consistent with Congress’ dual goals of reducing prisoner litigation and, at the same time, preserving meaningful access to the courts for prisoners with potentially meritorious claims. In expressing its concerns to the contrary, the dissent, post at 408-10, posits a situation in which a district court is confronted with a prisoner’s complaint that “wholly lack[s] merit” and dismisses the complaint without prejudice for failure to state a claim. The dismissal is appealed, and this court entertains the appeal pursuant to Domino Sugar Corp. v. Sugar Workers Local Union 392,
De’Lonta, however, does not substantiate the dissent’s concerns. In De’Lonta a prisoner brought a § 1983 claim alleging denial of adequate medical treatment in violation of the Eighth Amendment. Although the district court was “unable to conceive of any set of facts under which the Eighth Amendment would entitle” the plaintiff to relief, it nevertheless dismissed the complaint without prejudice to avoid “complicating any future actions with issues of collateral estoppel or claim preclusion.”
De’Lonta does not help the dissent for two reasons. First, upon review, our court actually reversed the district court’s Rule 12(b)(6) dismissal and remanded the case for further proceedings. Thus, De’Lonta is hardly an illustration of a complaint that “wholly lack[s] merit,” the type of complaint that the PLRA sought to address. Second, because we reversed the district court’s dismissal, we had no cause to address the appropriateness of the district court’s decision to dismiss De’Lonta’s suit “without prejudice.” To the extent, however, that a district court is truly unable to conceive of any set of facts under which a plaintiff would be entitled to relief, the district court would err in designating this dismissal to be without prejudice. Courts, including this one, have held that when a complaint is incurable through amendment, dismissal is properly rendered with prejudice and without leave to amend. See Cozzarelli v. Inspire Pharms. Inc.,
Rather than compelling an overbroad interpretation of the term “dismiss” when used in the context of failure to state a claim under § 1915(g), we suggest De’Lonta instead counsels that courts remain mindful of the distinction between an unqualified dismissal for failure to state a claim and a dismissal without prejudice. While a potentially meritorious claim, particularly by a pro se litigant, should not be unqualifiedly dismissed for failure to state a claim unless its deficiencies are truly incurable, see Bolding v. Holshouser,
F.
McLean has had six prior civil actions dismissed. Because four of those dismissals were without prejudice for failure to state a claim, he has accrued only two strikes under § 1915(g). Accordingly, the clerk’s order allowing him to proceed in this appeal without full prepayment of fees will be allowed to stand. Because McLean is not a “three striker,” it is not necessary for us to consider his claim that he is under imminent danger of serious physical injury.
III.
We turn at last to the merits of McLean’s appeal. McLean has sued the United States and the United States Congress under 42 U.S.C. § 1983, claiming that AEDPA’s statute of limitations provision, 28 U.S.C. § 2244(d), is a retroactive law and is thus unconstitutional. As the district court correctly concluded, the United States and its Congress are immune from suit in this instance.
As a sovereign the United States “is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Testan,
IV.
In sum, we hold that the dismissal of a prisoner’s complaint without prejudice for failure to state a claim does not count as a strike under 28 U.S.C. § 1915(g). This holding means that McLean does not have three strikes under § 1915(g) and that he can proceed in this appeal without the prepayment of filing fees. In considering
AFFIRMED.
Notes
. (1) McLean v. Michael, No. 7:98-cv-00119 (W.D.Va. Feb. 23, 1998) (dismissed without prejudice for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)); motion to reopen time to file appeal denied; aff'd
. For the same reason, our holding does not, as the dissent suggests, see post at 27, read any words into the statute that are not already implied by well-established legal meaning. See part II.A, supra.
Concurrence Opinion
concurring in part and dissenting in part:
Quentin McLean, a Virginia inmate and frequent litigant, filed this civil rights case against the United States of America and the United States Congress, asserting that a provision of AEDPA is unconstitutional. The district court dismissed the complaint under 28 U.S.C. § 1915A for failure to state a claim upon which relief can be granted. As the majority’s summary disposition of the merits of McLean’s appeal illustrates, the district court clearly did not err in dismissing the complaint. Thus, to the extent that we reach the merits of the appeal, I agree that the district court’s order should be affirmed. However, I disagree with the majority’s holding that McLean is not a “three striker” under 28 U.S.C. § 1915(g). In my view, this holding, which flows from the majority’s conclusion that prisoner cases that are dismissed without prejudice for failure to state a claim do not count as “strikes” under § 1915(g), is based on an incorrect reading of the statute. Consistent with the opinions of other circuit courts, I believe the most natural way to read § 1915(g) is to read it as it is written, and the statute on its face does not limit its scope only to dismissals with prejudice.
I
Ordinarily, litigants must pay $350 to file a civil complaint in a federal district court and $450 to file a notice of appeal in a federal court of appeals. See 28 U.S.C. §§ 1913 note (“Court of Appeals Miscellaneous Fee Schedule”), 1914(a). Notwithstanding this fact, “Congress has long regulated the access of indigent litigants to the federal judicial system,” Roller v. Gunn,
Congress originally believed that the IFP statute would not lead to a rise in vexatious litigation, but over time “the statute’s noble purpose has been threatened by a flood of merit-less lawsuits.” Id. at 230. “Unsurprisingly, prisoners proved responsible for much of this litigation.” Id. As the Supreme Court recently noted:
Prisoner litigation continues to “account for an outsized share of filings” in federal district courts. In 2005, nearly 10 percent of all civil cases filed in federal courts nationwide were prisoner complaints challenging prison conditions or claiming civil rights violations. Most of these cases have no merit; many are frivolous.
Jones v. Bock,
“Finding that the proliferation of prisoner litigation was due significantly to the lack of economic disincentives to filing meritless cases,” Roller,
To effect its purpose, the PLRA “imposes some rather substantial limitations on a prisoner’s ability to initiate a civil action,” Green v. Young,
For example, “[p]rior to the enactment of the PLRA, prisoners were able to use the in forma pauperis statute to avoid paying filing fees.” Green,
Requiring prisoners to make economic decisions about filing lawsuits does not deny access to the courts; it merely places the indigent prisoner in a position similar to that faced by those whose basic costs of living are not paid by the state. Those living outside of prisons cannot file a lawsuit every time they suffer a real or imagined slight. Instead, they must weigh the importance of redress before resorting to the legal system. If a prisoner determines that his funds are better spent on other items rather than filing a civil rights suit, “he has demonstrated an implied evaluation of that suit” that the courts should be entitled to honor.
Roller,
The PLRA also created § 1915(g), which is the “three strikes” provision now at issue. Section 1915(g) 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.
We have noted that § 1915(g) “does little more than apply the same rules to prisoners that apply to everyone else who brings an action or appeal.” Altizer,
Although section 1915(g) attaches consequences to past actions, ... [it] does not affect a prisoner’s substantive rights, and it does not block his or her access to the courts. A prisoner may still pursue any claim after three qualifying dismissals, but he or she must do so without the aid of the [IFP] procedures.
Id. at 546 n. 11 (quoting Adepegba v. Hammons,
Additionally, the PLRA increases the obligation of federal courts to dismiss certain prisoner litigation. “Before the PLRA, the in forma pauperis provision of § 1915 [then codified at 28 U.S.C. § 1915(d)], applicable to most prisoner litigation, permitted sua sponte dismissal only if an action was frivolous or malicious.” Jones,
Similarly, the PLRA also created two additional provisions authorizing the summary dismissal of prisoner litigation regardless of whether the prisoner seeks to proceed IFP. First, the PLRA created § 1915A, which in pertinent part requires the district court “before docketing, if feasible or, in any event, as soon as practicable after docketing” to (1) screen “a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and (2) dismiss such a complaint or any portion thereof that is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” Second, the PLRA created 42 U.S.C. § 1997e(c)(l),
Each of these “separate, but interrelated” PLRA provisions, O’Neal v. Price,
As we have noted: “The overriding goal in policing in forma pauperis complaints is to ensure that the deferred payment mechanism of § 1915(b) does not subsidize suits that prepaid administrative costs would otherwise have deterred.” Nagy,
II
The specific issue that we have raised in this appeal sua sponte is whether a dismissal without prejudice for failure to state a claim counts as a strike under § 1915(g).
A.
We have not previously addressed this issue in a published opinion, but other circuit courts have held that dismissals without prejudice count as strikes under § 1915(g). See, e.g., O’Neal,
In Green, we did consider and address the issue of whether a “routine dismissal” under § 1997e(a) for failure to exhaust administrative remedies constitutes a strike for purposes of § 1915(g). We held that such a dismissal does not constitute a strike, reasoning that “[bjecause a dismissal for failure to exhaust is not listed in § 1915(g), it would be improper for us to read it into the statute.”
In Nagy, although we did not consider what constitutes a strike under § 1915(g), we did address the meaning of the unqualified word “dismiss” as it is used in § 1915(e)(2)(B)®, pursuant to which the district court had dismissed a prisoner’s IFP complaint as frivolous. On appeal, the prisoner argued that the district court erred by considering the amount sought by the prisoner in determining whether the claim was frivolous. We rejected the prisoner’s argument and affirmed the dismissal. Notably, we stated that we did not think “that Congress intended a dismissal under § 1915(e)(2)(B)® of the in forma pauperis statute to operate as a dismissal with prejudice.”
B.
Section 1915(g) plainly does not distinguish between dismissals with and without prejudice. Rather, it mandates that absent imminent danger, a prisoner may not file, or appeal a judgment in, a civil action under the IFP statute “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....” Notwithstanding § 1915(g)’s silence regarding “prejudice,” the majority reads it as unambiguously limiting the unqualified word “dismissed” when coupled with the phrase “fails to state claim upon which relief may be granted” to mean “dismissed with prejudice.”
The majority grounds this reading on its view that “the complete phrase has a well-established legal meaning” that Congress presumably incorporated into § 1915(g). Majority Op., at 396. For support, the majority notes that the “failure to state a claim” ground in § 1915(g) is patterned after Federal Rule of Civil Procedure
In general usage, there is unquestionably a distinction between dismissals with and without prejudice, but the issue before us is whether the plain language of § 1915(g) makes the distinction relevant. A dismissal with prejudice “is a complete adjudication of the issues presented by the pleadings and is a bar to a further action between the parties.” Harrison v. Edison Bros. Apparel Stores, Inc.,
Thus, dismissals with and without prejudice for failure to state a claim for relief are two distinct types of “dismissals,” but they operate to achieve the same result for purposes of a specific civil case. Congress undoubtedly was aware of this fact when it used the unqualified word “dismissed” in § 1915(g). See Keene Corp. v. United States,
The majority is correct that courts ordinarily construe unqualified orders of dismissal for failure to state a claim for relief as being with prejudice. Federal Rule of Civil Procedure 41(b), which “sets forth ... a default rule for determining the import of [an involuntary] dismissal,” Semtek Int'l. Inc. v. Lockheed Martin Corp.,
C.
Although the plain language of § 1915(g) resolves this case, I note as a practical matter that district courts often dismiss prisoner cases — including those that wholly lack merit — for failure to state a claim without prejudice simply to avoid burdening the prisoner with potential res judicata implications that a dismissal with prejudice may cause. See, e.g., De’Lonta v. Angelone,
This can lead to a particularly curious result given our rules concerning appellate jurisdiction and dismissals without prejudice. Although an order dismissing a complaint without prejudice is generally not final and appealable, such an order is final and appealable if the grounds for dismissal clearly indicate that the plaintiff could not amend the complaint to cure the defects that warranted the dismissal. Domino Sugar Corp. v. Sugar Workers Local Union 392,
In De’Lonta, we applied the Domino Sugar rules to permit an appeal from an order dismissing a prisoner’s complaint without prejudice under § 1915(e)(2)(B) for failure to state a claim upon which relief could be granted. As noted, the district court found the prisoner’s complaint to wholly lack merit, but dismissed the case without prejudice to avoid burdening the prisoner with res judicata implications. Under the majority’s view, despite the fact that a prisoner in the situation presented in De’Lonta may unsuccessfully litigate an appeal of a patently baseless lawsuit all the way to the Supreme Court, that dismissal would not count as a strike based on the mere fortuity that the district court labeled the dismissal “without prejudice.” The fact that this scenario did not occur in De’Lonta (because we reversed the dismissal) is of no moment. The majority’s categorical exclusion of dismissals without prejudice for failure to state a claim compels the result that a dismissal in the scenario I have described cannot count as a strike if the dismissal is ultimately affirmed.
Although I disagree with the majority on this matter, I do not forecast that its decision will necessarily cause a proliferation of meritless prisoner litigation. As I have noted, our judicial system already faces that problem. I do believe that the majority’s decision will not advance Congress’ clear goal to reduce prisoner litigation, at least so long as district courts continue to err on the side of caution and dismiss meritless complaints without prejudice. However, the majority’s opinion may well prompt district judges who want to curb excessive (and often meaningless and time-consuming) prisoner litigation to discontinue that practice and, instead, start dismissing those complaints with prejudice.
Ill
The majority states that counting dismissals without prejudice for failure to state a claim as strikes would “impose indiscriminate restrictions” on prisoners’ access to the federal courts, Majority Op., at 397, but there is nothing at all indiscriminate in this regard. First, by enacting § 1915(g), Congress has restricted a prisoner’s access to the federal court system only if the prisoner seeks IFP status, and only if federal courts have previously dismissed three or more prior actions for the bases specified in that section, and only if the prisoner is not under imminent danger of serious physical injury. Even with this restriction, a prisoner is not barred from federal courts; instead, he simply must bear the ordinary costs of litigation like all other non-IFP litigants. Second, although the majority concludes that Congress did not intend for dismissals for failure to state a claim to count as strikes under § 1915(g), no one would realistically contend that Congress lacks the power to count those dismissals as strikes.
Although McLean appears to have had six actions dismissed for failure to state a claim while he has been incarcerated in Virginia, that description of his litigation history does not present the entire story. As with any prolific litigant, attempting to
The majority and I agree that the district court’s dismissal order for failure to state a claim in the appeal now before us should be affirmed. That order does not specify that it is without prejudice; thus, it will count as a strike even under the majority’s view. Given that the majority agrees that McLean has at least two previous strikes, McLean should hereafter be deemed a three-striker regardless of whether the majority’s holding regarding § 1915(g) is correct or not.
TV
Based on the foregoing, I concur in Part III of the majority opinion, and I dissent from the remainder.
. Even so, § 1915(b)(4) provides that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”
. Our court has a similar "three strikes” rule for prisoners seeking writs of mandamus, prohibition, or other extraordinary relief. See 4th Cir. R. 21(c)(2).
. The district courts had discretion under § 1915(d) to dismiss a frivolous or malicious action with or without prejudice. See Denton v. Hernandez,
. Section 1997e(a) requires prisoners to exhaust administrative remedies within the prison before filing a civil action.
. Congress was undoubtedly aware of the Supreme Court’s decision in Neitzke, in which the Court held that a complaint was not necessarily frivolous under § 1915(d) because it failed to state a claim. The Neitzke Court observed that despite the apparent appeal under § 1915(d) of using failure to state a claim "as a broadbrush means of pruning meritless complaints from the federal docket, as a matter of statutory construction it is untenable.”
. The operative word in § 1915(g) is “dismissed,” Throughout this opinion, I refer to the word "dismissed” in various forms (e.g., "dismiss” and "dismissal”). Substantively for purposes of this issue, there is no difference in the form of the word.
. In analyzing this issue, the majority has limited its interpretation of the word "dismissed” to address only a dismissal for failure to state a claim for relief. For purposes of my opinion, I will utilize the majority's analytical framework. Accordingly, it is not necessary to attempt to reconcile our holding in Nagy that a dismissal for frivolousness under § 1915(e)(2)(B)(i) must be without prejudice. However, even if the analysis would require reading the word "dismissed” in a broader context, Nagy does not preclude my analysis.
. For the reasons set forth in this opinion, particularly Part I, I believe it is evident that the legislative purpose underlying § 1915(g) clearly does not support the majority’s decision.
. McLean appears to have litigated in Virginia under the name “Quentin McLean” and “Quentin McLean-El.” Additionally, a Westlaw search indicates that a “Quentin McLean” and a “Quentin McLean-El” also litigated unsuccessfully in the District of Columbia federal courts in the 1990s.
. McLean has appealed one order designating him as a three-striker, and we have placed that appeal in abeyance pending this appeal. See McLean v. Dr. Smith, C.A. No. 7:07cv584 (W.D.Va. Dec. 17, 2007) (No. 08-6180 4th Cir.).