Fourth Circuit: Dismissal of South Carolina Prisoner’s Complaint Cannot Prematurely Be Called a “Strike” Under PLRA
by Douglas Ankney
On April 13, 2023, the U.S. Court of Appeals for the Fourth Circuit ruled that a district court cannot dismiss a prisoner’s complaint and at the same time declare it a “strike” for purposes of 28 U.S.C. § 1915(g). Under that statute, as amended by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, each dismissal of a federal suit filed by a prisoner counts as a “strike,” and after collecting three, the prisoner may not file another suit in forma pauperis (IFP), asking to have filing fees waived because of indigence.
While incarcerated in a South Carolina prison in 2020, Kevin Pitts filed a pro se suit pursuant to 42 U.S.C. § 1983, seeking damages from the State and several of its entities, as well as his defense counsel and the prosecutor in his case, based on alleged constitutional violations in his arrest and conviction. Because he was indigent, Pitts sought to file IFP, seeking to have the filing fees waved.
But a magistrate judge in the federal court for the District of South Carolina screened the complaint pursuant to 28 U.S.C. § 1915(a) to determine if it was “frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted” or “s[ought] monetary relief from a defendant who is immune”; a dismissal for any of those reasons could be counted as a “strike” in the future. The magistrate concluded that Pitts’ claims based on his arrest and conviction were barred by Heck v. Humphrey, 512 U.S. 477 (1994), which held that a plaintiff seeking damages under § 1983 for an unconstitutional arrest or conviction must first show that the conviction was reversed or otherwise set aside – which Pitts had not shown. His claims against the State were barred by sovereign immunity, the magistrate continued, and claims against the prosecutor were barred by prosecutorial immunity. Therefore the magistrate recommended dismissal of the complaint. He also recommended it be “designated a strike.”
Over Pitts’ objection, the district court accepted the recommendation and called the dismissal a “strike.” Pitts appealed to the Fourth Circuit, which appointed counsel from Richmond attorney Erin B. Ashwell of McGuire Woods LLP, along with Washington, D.C. attorneys from Jenner & Block LLP and the Roderick & Solange MacArthur Justice Center.
On appeal, Pitts argued that “district courts lack authority to prospectively label a dismissal a strike under section 1915(g) for purposes of a subsequent IFP application.” The Court observed that PLRA was intended to limit the number of frivolous lawsuits filed by prisoners,” in part with the “three-strikes” limitation on IFP actions. The only exception is when a prisoner shows he or she is “under imminent danger of serious physical injury.”
The Fourth Circuit opined that, “[l]ike other courts, we read this language to require a ‘backwards-looking inquiry’ by a court faced with an application to proceed in forma pauperis,” citing Simons v. Washington, 996 F.3d 350 (6th Cir. 2021). The Court continued that “[w]hat section 1915 contemplates is a ‘prisoner’ who is currently attempting to ‘bring a civil action’ in forma pauperis (‘under this section’) after having had three ‘prior’ suits dismissed in the past,” as explained in Dooley v. Wetzel, 957 F.3d 366 (3d Cir. 2020). “At that point, section 1915(g) ‘calls on a fourth (or at least later) court that has before it a civil action brought by the prisoner’ to look backwards [per Simons], ‘evaluat[ing] whether prior suits brought by the same plaintiff were dismissed on enumerated grounds [per Dooley].’”
So, the Court concluded, citing Fourstar v. Garden City Grp., Inc., 875 F.3d 1147 (D.C. Cir. 2017), “[i]f and when Pitts files a future motion to proceed IFP under section 1915(g), it will be up to that district court – not a district court who previously dismissed one of his suits – to go back, count dismissals, and determine for itself whether there are three that qualify as strikes.”
The Court observed that other circuits considering the question had agreed unanimously with this conclusion – including the Eighth Circuit, as PLN reported. [See: PLN, Dec. 2022, p.26.] Accordingly, the Court vacated the district court’s order in part and remanded the case to the district court with instructions to modify its order accordingly. See: Pitts v. South Carolina, 65 F.4th 141 (4th Cir. 2023).
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Related legal case
Pitts v. South Carolina
| Year | 2023 |
|---|---|
| Cite | 65 F.4th 141 (4th Cir. 2023) |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |