United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2017 Decided November 28, 2017

No. 15-5049

VICTOR CHARLES FOURSTAR, JR.,

APPELLANT

v.

GARDEN CITY GROUP, INC., ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-mc-00076)

Jonathan D. Kossack, appointed by the court, argued the 

cause as amicus curiae in support of appellant. With him on 

the briefs were Anthony F. Shelley and Dawn E. MurphyJohnson, appointed by the court.

Victor C. Fourstar Jr., pro se, filed the brief for appellant.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause 

for federal appellees. With her on the brief was R. Craig 

Lawrence, Assistant U.S. Attorney.

Before: KAVANAUGH and MILLETT, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge: In 1996, Congress passed 

and President Clinton signed the Prison Litigation Reform Act, 

known as the PLRA. The Act sought to stem the tide of 

frivolous litigation filed in federal court by some federal and 

state prisoners. 

Under the Act, a dismissal of a prisoner’s lawsuit for 

failure to state a claim, or as frivolous or malicious, is 

commonly referred to as a strike. With some limited 

exceptions, the Act’s basic rule is this: Three strikes and the 

prisoner is out of court. Specifically, a prisoner who has 

previously filed three lawsuits that were dismissed for failure 

to state a claim, or as frivolous or malicious, will ordinarily not 

be granted in forma pauperis status to file a new lawsuit. 

This case presents two questions about the operation of the 

PLRA. First, suppose a prisoner brings a suit with both federal

and state claims. Suppose that the district court dismisses the 

prisoner’s federal claims for failure to state a claim, or as 

frivolous or malicious, but declines to exercise supplemental 

jurisdiction over the prisoner’s state-law claims. Does that 

disposition count as a strike under the PLRA? Second, suppose

that the district court when dismissing a case 

contemporaneously labels the case as a strike for purposes of 

the Act. When the prisoner later seeks to file a new suit, may

the later district court simply defer to the earlier district court’s 

labeling of the dismissal as a strike, or must the later district 

court decide for itself whether the previous dismissal counts as 

a strike?

The text of the Act resolves those questions. First, the text 

identifies the circumstances in which dismissal of a prisoner’s 

lawsuit counts as a strike: when the case is dismissed for failure 
3

to state a claim, or as frivolous or malicious. For a case to count 

as a strike, all of a prisoner’s claims in the case must be 

dismissed on one of those enumerated grounds. A case in 

which a district court declines to exercise supplemental 

jurisdiction over a prisoner’s state-law claims does not come 

within that description and therefore does not count as a strike. 

Second, the Act does not require or allow a later district court

to simply defer to an earlier district court’s contemporaneous 

statement that a dismissal counts as a strike. The later district 

court must independently evaluate whether the prior dismissals 

were dismissed on one of the enumerated grounds and 

therefore count as strikes. 

In this case, applying those principles, we conclude that 

Fourstar has only one strike. As a result, absent any other 

ground on which his in forma pauperis status may properly be 

denied, he is entitled to in forma pauperis status and may 

maintain his lawsuit. We therefore reverse the judgment of the 

District Court denying Fourstar in forma pauperis status and 

dismissing his case. 

I

On December 19, 2014, while in federal prison, Fourstar 

filed a complaint in the U.S. District Court for the District of 

Columbia alleging constitutional violations by several U.S. 

government officials. Along with his complaint, Fourstar filed 

an application to proceed in forma pauperis. A party who is 

unable to pay the fees and costs associated with filing a lawsuit 

may apply to proceed in forma pauperis and be excused from 

paying those fees and costs. 

The District Court denied Fourstar’s application to 

proceed in forma pauperis and dismissed Fourstar’s suit. The 

District Court denied in forma pauperis status because Fourstar 
4

had accumulated at least three strikes under the PLRA and 

therefore was barred from proceeding in forma pauperis.

The District Court counted three prior cases filed by 

Fourstar as strikes: Fourstar v. Murlak, No. 07-cv-5892 (C.D. 

Cal. May 26, 2010); Fourstar v. Ness, No. 4:05-cv-108 (D. 

Mont. Apr. 26, 2006); and Fourstar v. Zemyan, No. 4:08-cv-50 

(D. Mont. Aug. 26, 2008).1

The district court in Murlak concluded that Fourstar’s 

complaint was frivolous and failed to state a claim upon which 

relief could be granted. Fourstar correctly concedes that the 

District Court here properly counted Murlak as a strike. 

The district court in Ness dismissed Fourstar’s federal 

claims because he failed to state a claim upon which relief may 

be granted. But in that case, Fourstar also brought state-law 

claims. The Ness district court declined to exercise 

supplemental jurisdiction over Fourstar’s state-law claims 

because they presented novel applications of state law. For 

present purposes, it bears mention that the Ness district court 

also expressly stated in its order that the case should count as a 

strike against Fourstar under the PLRA.

The district court in Zemyan dismissed Fourstar’s 

complaint for lack of jurisdiction and dismissed his state-law 

claims without prejudice. Like the district court in Ness, the 

district court in Zemyan stated that the dismissal should count

as a strike against Fourstar.

 1 Our decision is premised on the District Court’s conclusion 

that those three cases constitute the only strikes against Fourstar. The 

Government has not identified any other cases that might count as 

strikes.
5

Fourstar argues that Ness and Zemyan should not count as 

strikes. Our review of the legal issues raised by his appeal is 

de novo. 

II

The relevant section of the PLRA provides that a prisoner 

may not proceed in forma pauperis if the prisoner has three 

strikes: “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). 

Fourstar argues that the Ness and Zemyan dismissals 

should not count as strikes. He contends that the district courts 

in those two cases did not dismiss all of Fourstar’s claims on

grounds enumerated in the PLRA. And he says that the Ness 

and Zemyan district courts’ express statements that the cases 

counted as strikes were incorrect and should receive no 

deference from the District Court here.

A

Does a case count as a strike when a district court 

dismisses a prisoner’s federal claims for failure to state a claim, 

or as frivolous or malicious, but declines to exercise 

supplemental jurisdiction over the prisoner’s state-law claims? 

The answer is no. 
6

The text of the Act and our decision in Thompson v. DEA, 

492 F.3d 428 (D.C. Cir. 2007), guide our analysis. In 

Thompson, this Court held that dismissals for lack of 

jurisdiction do not count as strikes. The Court reasoned that all

of the claims in a case must be dismissed on grounds 

enumerated in the PLRA in order for the case to count as a 

strike. The Court explained that the PLRA “speaks of the 

dismissal of actions and appeals, not claims. Indeed, it would 

make no sense to say – where one claim within an action is 

dismissed for failing to state a claim and another succeeds on 

the merits – that the action had been dismissed for failing to 

state a claim.” Id. at 432 (internal citation and quotation marks 

omitted). The Court concluded that if “at least one claim within 

an action or appeal falls outside section 1915(g), the action or 

appeal does not count as a strike.” Id. at 440; see also Mitchell 

v. Federal Bureau of Prisons, 587 F.3d 415, 418 (D.C. Cir. 

2009) (internal citations and quotations omitted) (case does not 

count as strike if case was “dismissed or disposed of, at least in 

part, for reasons other than being frivolous, malicious, or 

failing to state a claim upon which relief may be granted”). 

Our Thompson decision is consistent with the decisions of 

at least seven other courts of appeals that have similarly

concluded that a case counts as a strike only if all of the claims 

were dismissed on grounds enumerated in the PLRA. We are 

aware of no court of appeals that has ruled otherwise. See, e.g.,

Brown v. Megg, 857 F.3d 287, 288 (5th Cir. 2017) (A “strike 

does not issue when only some claims are dismissed on section 

1915(g) grounds.”); Daker v. Commissioner, Georgia 

Department of Corrections, 820 F.3d 1278, 1283-84 (11th Cir. 

2016) (internal citation and quotations omitted) (“Three 

specific grounds render a dismissal a strike: frivolous, 

malicious, and fails to state a claim upon which relief may be 

granted. Under the negative-implication canon, these three 

grounds are the only grounds that can render a dismissal a 
7

strike.”); Byrd v. Shannon, 715 F.3d 117, 125 (3d Cir. 2013)

(internal citations omitted) (“We agree with the majority of our 

sister courts of appeals that § 1915(g) requires that a prisoner’s 

entire action or appeal be dismissed on enumerated grounds in 

order for the dismissal to count as a strike.”); Taylor v. Hull, 

538 F. App’x 734, 735 (8th Cir. 2013) (internal citation 

omitted) (“The plain language in § 1915(g) requires that the 

entire action be dismissed on one or more of three enumerated 

grounds, i.e., as frivolous, malicious, or for failing to state a 

claim.”); Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir. 

2011) (footnote omitted) (“Accordingly, we conclude that 

‘action’ in § 1915(g) unambiguously means an entire case or 

suit. Therefore, § 1915(g) requires that a prisoner’s entire 

‘action or appeal’ be dismissed on enumerated grounds in order 

to count as a strike.”); Turley v. Gaetz, 625 F.3d 1005, 1008-09

(7th Cir. 2010) (internal citation omitted) (“Here we believe 

that the obvious reading of the statute is that a strike is incurred 

for an action dismissed in its entirety on one or more of the 

three enumerated grounds.”); Andrews v. King, 398 F.3d 1113, 

1121 (9th Cir. 2005) (prior dismissal qualifies as a strike only 

if the action was “dismissed because it was frivolous, malicious

or failed to state a claim”). 

As we held in Thompson, if a court dismisses one or more 

of a prisoner’s claims for a reason that is not enumerated in the 

PLRA, the case does not count as a strike. When a district court

has declined to exercise supplemental jurisdiction over statelaw claims, the court has not dismissed the state-law claims for 

failure to state a claim, nor has the court dismissed the statelaw claims as frivolous or malicious. Therefore, a case in 

which a court declines to exercise supplemental jurisdiction 

over state-law claims does not count as a strike. 

The Government argues that this approach will allow 

prisoners to avoid accruing strikes by just willy-nilly adding 
8

state-law claims to their federal claims. To begin with, if a 

prisoner adds meritless state-law claims, the district court may 

in appropriate circumstances dismiss those state-law claims for 

failure to state a claim, or as frivolous or malicious, rather than 

declining to exercise supplemental jurisdiction over the statelaw claims. If so, the case will still count as a strike. So we do 

not envision a huge influx of cases in which a prisoner exploits 

that possibility. 

That said, the Government is no doubt correct that there 

will be at least some cases. The Government contends that 

allowing that gambit would flout the purpose of the PLRA.

After all, as the Government rightly points out, Congress 

enacted the PLRA to reduce frivolous litigation by prisoners 

and to preserve the scarce resources of the courts and the 

defendants in prisoner litigation.

That may be true, but we nonetheless must stick to the text 

of the statute. It is not a judge’s job to add to or otherwise remold statutory text to try to meet a statute’s perceived policy 

objectives. Instead, we must apply the statute as written. See 

generally Milner v. Department of the Navy, 562 U.S. 562 

(2011).

B

When district courts dismiss prisoner actions, they 

sometimes contemporaneously say in their orders that the 

dismissal should count as a strike. For example, in Ness, the 

dismissing district court stated “that the docket should reflect 

that Plaintiff’s filing of this action count as one strike against 

him, under 28 U.S.C. § 1915(g).” Fourstar v. Ness, No. 4:05-

cv-108 (D. Mont. Apr. 26, 2006). And in Zemyan, the 

dismissing district court directed that the docket should “reflect 

that the dismissal of” Fourstar’s complaint should “count as a 
9

strike.” Fourstar v. Zemyan, No. 4:08-cv-50 (D. Mont. Aug. 

26, 2008).

What happens when the dismissing district court expressly 

states that its dismissal of a prisoner’s case should be counted 

as a strike for future purposes? In particular, may a later district 

court simply defer to an earlier district court’s 

contemporaneous labeling of a case as a strike? The answer is 

no. 

The PLRA requires the district court in the current case to 

bar a prisoner from proceeding in forma pauperis only if that

district court determines that a prisoner has three strikes. 

District courts must independently evaluate prisoners’ prior 

dismissals to determine whether there are three strikes. A 

district court may not relinquish that statutory responsibility 

simply because a prior dismissing court has labeled a dismissal 

as a strike. If Congress wanted district courts to 

contemporaneously label dismissals as strikes or wanted those 

labels to bind later district courts, Congress could have said so 

in the PLRA. Congress said no such thing. 

The Government’s argument, if accepted, would produce 

grossly inequitable and even absurd results. Because district 

courts are not statutorily obligated to contemporaneously label 

dismissals as strikes, some district courts do so but some 

district courts do not. But the happenstance of whether a 

district court has contemporaneously attached a “strike” label 

to a dismissal cannot be the key to the courthouse door. We 

see no indication that Congress sought to impose such a 

haphazard and inequitable system for stemming the tide of 

prisoner litigation. Indeed, perhaps in recognition of that point 

and to avoid confusion, the Second Circuit has instructed 

district courts in that circuit not to contemporaneously label 
10

cases as strikes in the first place. See Deleon v. Doe, 361 F.3d 

93, 95 (2d Cir. 2004).

In short, a district court’s labeling of a dismissal as a strike

undoubtedly may help later district courts to identify potential

strikes in a prisoner’s litigation history. But a prisoner may be 

barred from proceeding in forma pauperis only if the later 

district court independently determines that the prisoner has 

brought three cases that were dismissed for failure to state a 

claim, or as frivolous or malicious.

2

 

* * *

We reach two conclusions in this appeal. First, a case in

which a district court declines to exercise supplemental 

jurisdiction over a prisoner’s state-law claims – and does not 

dismiss those claims for failure to state a claim, or as frivolous 

or malicious – does not count as a strike under the PLRA. 

Second, a later district court may not defer to an earlier district 

court’s contemporaneous decision to label a dismissal as a 

strike. 

Applying those principles here, the Ness and Zemyan cases 

do not count as strikes against Fourstar. Fourstar therefore has 

only one strike and may proceed in forma pauperis and 

maintain his new suit. 

 2 To be clear, as this Court has said, the later district court must 

independently determine whether the dismissal in the earlier case occurred 

on grounds enumerated in the PLRA, but the later district court may not 

relitigate the underlying merits of those past dismissals. Thompson, 492 

F.3d at 438-39. Put another way, the question of whether a prior district 

court properly labeled the case as a strike is distinct from the question of 

whether a prior district court properly dismissed a case for failure to state a 

claim, or as frivolous or malicious. The former is not binding on the later 

district court; the latter is binding on the later district court. 
11

We reverse the judgment of the District Court denying 

Fourstar in forma pauperis status and dismissing his case. 

So ordered.