WILLIAM A. WHITE, Plaintiff-Appellant, versus DENNIS LEMMA, in his official capacity as Sheriff of Seminole County, Florida, JEFFREY K. GRANT, DEBEVOISE & POULTON, PA, UNITED STATES TREASURY, Defendants-Appellees.
No. 19-13650
United States Court of Appeals for the Eleventh Circuit
January 27, 2020
[PUBLISH] Non-Argument Calendar D.C. Docket No. 6:19-cv-01486-PGB-GJK Appeal from the United States District Court for the Middle District of Florida
Before WILSON, HULL, and MARCUS, Circuit Judges.
The appellant William White is no stranger to the courts. A federal prisoner, White has long peppered federal and state officials with prison-related lawsuits. In
White‘s latest action alleges that the Sheriff and his counsel, through their counterclaim, unlawfully double billed the government for White‘s prison costs, that their counterclaim arose to actionable abuse of process, and that the United States Department of the Treasury must defend and indemnify him against the counterclaim under
The district court, on its own motion, dismissed White‘s complaint for two reasons. First, the court determined, after screening the complaint under
Second, the court noted that White had previously filed three prisoners‘-rights cases that were dismissed as frivolous, malicious, or for failure to state a claim, and that he had failed to allege that he was under imminent danger of serious injury. As a result, the district court held that White could not proceed IFP under
The question for us is whether the district court was right to dismiss White‘s case on the merits even though it determined that White had struck out under the three-strikes provision and had not paid the filing fee. Because we conclude that the three-strikes provision is non-jurisdictional, and because White failed to state a claim, we hold that the court properly dismissed the case on its merits, and thus affirm.
I.
Congress enacted the Prison Litigation Reform Act (PLRA) to “curtail abusive prisoner litigation.” Id. To that end, the PLRA contains procedural safeguards that prevent prisoners from misusing the legal system.
One of these safeguards is the early screening provision. See
Another measure is the three-strikes provision. This provision states that in “no event shall a prisoner bring [an action] under the [IFP] section” if the prisoner has filed three or more prisoner lawsuits that were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner is “under imminent danger of serious physical injury.”
Now for the question here: What happens when a prisoner strikes out under the three-strikes provision and fails to pay the filing fee, but also brings frivolous or unmeritorious claims that a court could dismiss with prejudice under the early screening provision? Must the court dismiss the case without prejudice out of hand, or can it opt to dismiss the case on the merits with prejudice instead? In short, we must decide if our rule requiring dismissal of a prisoner suit under Section 1915(g) is a jurisdictional rule, or a procedural one that a court can skip to dismiss on the merits.
We declined to answer this question in Lloyd v. Benton, 686 F.3d 1225, 1228 (11th Cir. 2012). But the plain text of the provision, coupled with our analysis in Benton and persuasive authority from other courts, convinces us that a court may dismiss a claim on the merits even when a prisoner has three strikes and fails to pay the filing fee.
To start, the Supreme Court has “cautioned, in recent decisions, against profligate use of the term jurisdictional.” Santiago-Lugo v. Warden, 785 F.3d 467, 472 (11th Cir. 2015) (alteration accepted). We thus follow a simple rule in the Eleventh Circuit: “[W]here Congress does not say there is a jurisdictional bar, there is none.” Id. at 473. We do so because, often times, “it is easier to deny (not grant, of course, but deny)” relief to an abusively litigious prisoner on the merits. See id. at 475; cf. Granberry v. Greer, 481 U.S. 129, 131 (1987) (“[T]here are some cases in which it is appropriate for an appellate court to address the merits of a habeas corpus petition notwithstanding the lack of complete exhaustion.“).
So we start with the text. Section 1915(g) says that “[i]n no event shall a prisoner bring a civil action . . . under this section” if the prisoner has three or more strikes. This means that a prisoner with three strikes can‘t proceed under Section 1915‘s grant of IFP status, but it says nothing of a court‘s ability to hear the prisoner‘s case, nor does it bar a prisoner with three strikes from filing suit. See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998) (“[S]ection 1915(g) does not prevent a prisoner with three strikes from filing civil actions; it merely prohibits him from enjoying IFP status.“).
In other words, a prisoner with three strikes under Section 1915(g) is no different than any other non-IFP prisoner. A three-strike prisoner thus faces the fate that any non-IFP prisoner faces when the prisoner fails to pay the filing fee up front: dismissal without prejudice. See Dupree, 284 F.3d at 1236. But nothing in the text of Section 1915(g) suggests that a court is without jurisdiction or authority to dismiss
In fact, we already decided that this rule is non-jurisdictional in Benton (though in a different context).2 There we reversed a district court‘s order remanding a prisoner‘s case to state court. The district court held that, since the prisoner had three strikes and couldn‘t cover court costs, the prisoner could not maintain his case in federal court under Section 1915(g) and thus remand was appropriate. We reversed, holding that Section 1915(g) did not deprive the federal court of jurisdiction. We then left it to the district court to decide whether to hear the case‘s merits or dismiss for failure to pay the filing fee. That court, on remand, dismissed the case not under Section 1915(g), but for abuse of the judicial process. Lloyd v. Benton, 2014 WL 897045, at *1 (M.D. Fla. Mar. 6, 2014).
Moving outside our circuit, most courts agree that “Section 1915(g) is not a jurisdictional limitation but merely requires the full prepayment of fees where the conditions of the statute are met.” Pigg v. F.B.I., 106 F.3d 1497, 1497 (10th Cir. 1997); Isby v. Brown, 856 F.3d 508, 520 (7th Cir. 2017); Lisenby v. Lear, 674 F.3d 259, 263 (4th Cir. 2012); see also Jackson v. Stinnett, 102 F.3d 132, 136 (5th Cir. 1996) (holding that the PLRA‘s certification requirements are non-jurisdictional).
In fact, the Seventh and Tenth Circuits have answered the question here, holding that a court can hear a three-strike prisoner‘s claim on the merits, even if the prisoner failed to pay the filing fee. See Smith v. Veterans Admin., 636 F.3d 1306, 1309-10 (10th Cir. 2011) (“[W]e have long recognized that we retain discretion to ignore the three-strikes rule and reach the merits of an appeal.“); Isby, 856 F.3d at 521. To our knowledge, no circuit has held otherwise in a published opinion.3
Further, although a non-IFP prisoner must pay the filing fee or face dismissal, see Dupree, 284 F.3d at 1236, our precedent also holds that the “timely payment of a filing fee” is not a “jurisdictional requisite.” Wrenn v. Am. Cast Iron Pipe Co., 575 F.2d 544, 547 (5th Cir. 1978)4; see also Rodgers on Behalf of Jones v. Bowen, 790 F.2d 1550, 1552 (11th Cir. 1986) (noting that we have “expressly rejected the theory that timely payment of a filing fee is a jurisdictional
requirement“).5
This interpretation tracks the policy driving the PLRA. Again, “[t]he purpose of the PLRA is to curtail abusive prisoner litigation.” Dupree, 284 F.3d at 1236. Were we to hold that the three-strikes provision is jurisdictional or works as an absolute procedural bar to our authority to dismiss on the merits, a court would have to dismiss a case without prejudice whenever a prisoner has more than three strikes and fails to pay the filing fee, no matter how frivolous the case. That rule would bog down the courts with repeat litigation—precisely the opposite of the PLRA‘s aim. We thus feel confident that neither Dupree nor the PLRA intended
that the three-strikes provision bar a court from dismissing a groundless claim on the merits.7
For these reasons, we hold that the PLRA‘s three-strike provision is non jurisdictional. So though a court must procedurally dismiss without prejudice the claim of a prisoner who has struck out under the three-strikes provision and failed to pay the filing fee, the court may also consider the merits to dismiss the case with prejudice instead.
II.
Having put that issue to bed, we make swift work of the three-strikes analysis and the merits. We review a district court‘s determination of qualifying strikes under the three-strikes provision de novo. See Rivera, 144 F.3d at 723. We do the same for a district court‘s sua sponte dismissal of a prisoner complaint for failure to state a claim under
At the gate, the district court was right to hold that White failed to qualify for IFP status since he has three qualifying prior dismissals and failed to allege that he was in danger of imminent harm. See
The court was also right to dismiss the case on its merits after screening.9 “A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief.” Jones, 549 U.S. at 215. To survive a motion to dismiss, the plaintiff‘s complaint must contain facts sufficient to support a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). The district court must accept the plaintiff‘s allegations as true but need not accept legal conclusions. Id. at 678.
Starting with the False Claims Act (FCA) claim, the FCA permits private persons to sue any person who knowingly presents to an officer or employee of the United States a false claim for payment or approval or knowingly makes a false record or statement to get a false claim paid or approved by the government. United States ex rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1307 (11th Cir. 2002). White did not allege that the defendants presented a false claim to an officer or employee of the United States; he alleged that they levied a counterclaim against White, a private citizen. That does not qualify as a false claim under the FCA. See id.
White‘s abuse-of-process claim also fails. To state a claim for abuse of process under Florida law, a plaintiff must allege three elements: “(1) that the defendant made an illegal, improper, or perverted use of process; (2) that the defendant had ulterior motives or purposes in exercising such illegal, improper, or perverted use of process; and (3) that, as a result of such action on the part of the defendant, the plaintiff suffered damage.” S & I Invests. v. Payless Flea Market, Inc., 36 So. 3d 909, 917 (Fla. 4th DCA 2010). The plaintiff must prove that “the process was used for an immediate purpose other than that for which it was designed.” Id. When “the process was used to accomplish the result for which it
was intended, regardless of an incidental or concurrent motive of spite or ulterior purpose, there is no abuse of process.” Id. (internal quotation marks omitted).
There is no abuse of process here. Florida law allows the Sheriff to sue for White‘s costs of confinement. See
Finally, White is not entitled to defense and indemnification under Section 4007. That provision merely states that “expenses attendant upon the confinement of persons arrested or committed under the laws of the United States . . . shall be paid out of the Treasury of the United States in the manner provided by law.”
For these reasons, the district court‘s judgment is AFFIRMED.