David Orr v. Tom Clements

United States Court of Appeals
For the Eighth Circuit
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No. 12-1422
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David Orr
lllllllllllllllllllll Plaintiff - Appellant
v.
Tom Clements
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: May 31, 2012
Filed: August 20, 2012
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Before COLLOTON, ARNOLD, and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Missouri inmate David Orr moves for leave to proceed in forma pauperis in
this appeal. The district court dismissed Orr’s civil rights action before service of
process, pursuant to 28 U.S.C. § 1915A, for failure to state a claim upon which relief
may be granted. We conclude that Orr is ineligible under 28 U.S.C. § 1915(g) to
proceed in forma pauperis on appeal, and we therefore deny the motion.

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In the Prison Litigation Reform Act of 1996, Congress enacted what is
commonly described as the “three strikes” provision of § 1915(g). It 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.
28 U.S.C. § 1915(g). If a prisoner is ineligible to proceed under § 1915, then he may
still file an action or appeal, but he must pay the full filing fee up front or suffer
dismissal. Ashley v. E. Dilworth, CO-1, 147 F.3d 715, 716-17 (8th Cir. 1998) (per
curiam). Orr does not allege he is under imminent danger of serious physical injury,
so the question before us is whether Orr has accumulated three or more “strikes” as
the result of dismissals of civil actions that he brought as a prisoner.
Orr acknowledged in his motion to proceed in forma pauperis that he brought
two prior actions in federal court while incarcerated that were dismissed because they
were frivolous, malicious, or failed to state a claim upon which relief may be granted.
He did not specify the actions by name, and the records of the district court show
three cases that were dismissed under 28 U.S.C. § 1915(e)(2)(B)(i) or (ii). See Orr
v. Purkett (Purkett I), No. 4:05-cv-280-HEA (E.D. Mo. May 5, 2005); Orr v. Purkett
(Purkett II), No. 4:05-cv-2270-HEA, 2006 WL 680961 (E.D. Mo. Mar. 15, 2006);
Orr v. Larkins, No. 4:08-cv-1233-CDP, 2008 WL 4488805 (E.D. Mo. Sept. 30,
2008), aff’d, 610 F.3d 1032 (8th Cir. 2010). Unless there is some reason to exclude
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at least one of the three dismissals from the tally under § 1915(g), Orr is ineligible for
pauper status.1
All three actions were dismissed without prejudice, but we see no reason why
a dismissal without prejudice should not count as a strike under § 1915(g). The text
of § 1915(g) draws no distinction between dismissals with prejudice and dismissals
without prejudice. It refers only to “an action” that “was dismissed” on certain
grounds. When a district court dismisses an action for failure to state a claim, it may
do so with or without prejudice. See WPP Luxembourg Gamma Three Sarl v. Spot
Runner, Inc., 655 F.3d 1039, 1058 (9th Cir. 2011); Fed. R. Civ. P. 41(b). Either way,
“an action” has been “dismissed” on one of the grounds specified in § 1915(g). We
thus conclude that dismissals without prejudice are not categorically excluded from
those that should be tallied under the statute. See Armentrout v. Tyra, 175 F.3d 1023,
1999 WL 86355 (8th Cir. 1999) (per curiam) (unpublished).
Most circuits to consider the issue have reached the same conclusion. See Paul
v. Marberry, 658 F.3d 702, 704 (7th Cir. 2011); O’Neal v. Price, 531 F.3d 1146,
1152-54 (9th Cir. 2008); Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (per
curiam); Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 464 (5th Cir. 1998). The
Fourth Circuit, however, has ruled that a dismissal for failure to state a claim counts
as a strike only when the dismissal is “an adjudication on the merits and prejudiced
the filing of a subsequent complaint with the same allegations.” McLean v. United
States, 566 F.3d 391, 396 (4th Cir. 2009). The court reasoned that the “fails to state
a claim” language of § 1915(g) parallels the text of Rule 12(b)(6) of the Federal Rules
of Civil Procedure, and that “unless otherwise specified,” a dismissal under Rule
12(b)(6) is rendered with prejudice. On that basis, the Fourth Circuit concluded that
The dismissal of a prisoner’s lawsuit for failure to state a claim does not count1
as a strike under § 1915(g) until he has exhausted or waived his rights to appeal.
Campbell v. Davenport Police Dep’t, 471 F.3d 952, 953 (8th Cir. 2006). Therefore,
we do not count the dismissal that is the subject of this appeal.
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for purposes of § 1915(g), a dismissal for failure to state a claim must prejudice the
filing of a subsequent complaint to count as a strike. 566 F.3d at 396. We disagree
with this analysis. Although there is a presumption that a dismissal under Rule
12(b)(6) is a judgment on the merits made with prejudice, e.g., Carter v. Norfolk
Cmty. Hosp. Ass’n, Inc., 761 F.2d 970, 974 (4th Cir. 1985), such a dismissal can be
rendered without prejudice if the court so specifies. E.g., Guzowski v. Hartman, 849
F.2d 252, 255 (6th Cir. 1988). An action thus can be “dismissed on the grounds that
it . . . fails to state a claim upon which relief may be granted,” even if the dismissal
is without prejudice. See Paul, 658 F.3d at 705.
Is there any other reason why one of Orr’s three dismissals without prejudice
should not count? In Day v. Maynard, the Tenth Circuit reserved judgment on
“whether a case dismissed without prejudice, then refiled and dismissed a second time
would count as two separate strikes.” 200 F.3d at 667 n.1. Orr’s motion presents
essentially that scenario. In Purkett I, Orr filed a complaint alleging a violation of his
rights under the Eighth Amendment, and the district court ultimately dismissed it
without prejudice. The court initially observed that although “the underlying eighth
amendment claim asserted in the complaint would usually survive review under 28
U.S.C. § 1915(e)(2)(B),” the complaint was deficient because Orr did not allege how
the sole defendant had caused or failed to correct the alleged constitutional violation.
Purkett I, slip op. at 4 (E.D. Mo. Mar. 28, 2005) (interim order). The court ordered
Orr to file an amended complaint within thirty days to correct that deficiency. Orr
missed the deadline, and the district court dismissed his complaint without prejudice,
both because it failed to state a claim upon which relief may be granted and because
Orr failed to comply with a court order. Orr thereafter submitted an amended
complaint, but the district court struck it as untimely. The court advised Orr that he
could “file his amended complaint as a new civil action—which will require the
payment of another filing fee.” Purkett I, slip op. at 2 (E.D. Mo. May 17, 2005)
(interim order).
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Orr eventually filed the stricken amended complaint from Purkett I as an
original complaint in Purkett II. The district court reviewed the complaint and
concluded that Orr’s allegations of inadequate medical care in prison “indicate[d]
only a disagreement over treatment methods or—at best—negligence in treating his
condition.” Purkett II, 2006 WL 680961, at *2. Because such allegations were
insufficient to establish a constitutional violation, the court dismissed the complaint,
pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to state a claim upon which relief
may be granted.
The text of § 1915(g) provides that the dismissals in Purkett I and Purkett II
both count as strikes. The statute precludes pauper status where the prisoner has
brought, on at least three prior occasions, “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.” 28 U.S.C. § 1915(g) (emphases
added). The term “action” has a familiar meaning in the pleading context. A “civil
action” is one that is “commenced by filing a complaint with the court,” Fed. R. Civ.
P. 3, and § 1915 equates “action” with an entire “case” or “suit.” Tolbert v.
Stevenson, 635 F.3d 646, 650-51 (4th Cir. 2011). So long as the district court
dismisses two separate actions for a reason enumerated in § 1915(g), the statute
provides for two strikes. That two actions are based on the same underlying events
and raise similar or identical claims does not preclude the accumulation of two
dismissals for purposes of § 1915(g).
Purkett I and Purkett II were separate actions. Each was commenced by the
filing of a separate complaint and docketed independently with a separate case
number. Each was dismissed on the ground that the complaint failed to state a claim.
The district court dismissed the action in Purkett I in its entirety, involuntarily and
without prejudice, and thus entered a final appealable judgment. See Cyprus Amax
Coal Co. v. United States, 205 F.3d 1369, 1372 (Fed. Cir. 2000); Car Carriers, Inc.
v. Ford Motor Co., 789 F.2d 589, 591 n.4 (7th Cir. 1986). This was strike one. Orr
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then commenced another action in Purkett II, and the district court dismissed that
action, too, without prejudice for failure to state a claim. This was a second strike.
The dismissal in the unrelated Larkins action for failure to state a claim was a third.
Orr is therefore ineligible for pauper status.
For the foregoing reasons, we deny Orr’s motion for leave to proceed in forma
pauperis. Orr must pay the appellate filing fee of $455.00 within fourteen days or
this appeal will be dismissed for failure to prosecute. See 8th Cir. R. 3C.
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