# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

A rgued October 11, 2017 Decided November 28, 2017

No. 15

- 5049

V ICTOR C HARLES F OURSTAR

, J R

., A PPELLANT

v.

G ARDEN C ITY G ROUP

, I NC

., ET AL

., A PPELLEES

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. Murphy

Johnson , appointe d 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: K AVANAUGH and M ILLETT

, Circuit Judges , and

W ILLIAMS

, Senior Circuit Judge

.2

Opinion for the Court filed by Circuit Judge K AVANAUGH

.

K AVANAUGH

, Circuit Judge : I n 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

com monly referred to as a strike. W ith some limited exceptions, the Act’s basic rule is this : T hree strikes and the pri soner 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 pres ents 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 suppl emental jurisdiction over the prisoner’s state

- law claims . Does that disposition count as a strike under the PLRA? Second

, suppose that the district court w hen 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 distric t 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, t he text
identifie s the circumstances in which dis missal of a prisoner’s
lawsuit counts as a strike : when the case is dismissed for failure3

to state a claim, or as frivolous or malicious

. For a case t o 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 suppl emental 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 al low a later district court

to simply defer to an earlier district court’s contemporaneous statement that a dismissal count s as a strike

. The later district court must independently evaluate whether the prior dismissal s were dismissed on one of the enumera ted grounds and
therefore count as strike s

.

In this case, applying those principles, we conclude that Fourstar has only one strike. As a result, a bsent any other ground on which hi s in forma pauperis status may properly be denied, he is entitled to in forma pauperis status and may maintain his l awsuit. We therefore reverse the judgme nt of the District Court denying Fourstar in forma pauperis status and dismissing his case

.

I

On December 19, 2014, while in federal prison, Fourstar
file d a complaint in the U.S. District Court for the District of
Columbia alleging constitution al 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 p ay 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 C ourt denied Fourstar’s application to proceed in forma pauperis and dismissed Fourstar’s suit

. The
District Court denied in forma pauperis status because Fourstar4

had acc umulated at least three strikes under the PLRA and
therefore was barr ed from proceeding in forma pauperis.

The District Court counted three prior cases filed by
Fourstar as strikes: Fourstar v. Murlak , No. 07

- c v

- 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 dismiss ed 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 c laims because they presented n ovel 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 ag ainst Fourstar under the PLRA.

The district cour t 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 tho se three cases constitute the only strikes against Fourstar. The
Government has not identified any other cases that might count as
strikes.5

F ourstar 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 facilit y, 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 i njury .” 28 U.S.C. § 1915(g).

Fourstar argues that the Ness and Zemyan dismissals
should not count as strikes

. H e contends that the district courts
in those two cases did not dismiss all of Fourstar’s claims on ground s enumerated in the PLRA

. And he sa ys that the Ness
and Zemyan district courts’ express statements that the cases

count ed as strikes were incorrect and should receive no
deference from the District Court here

.

A

D oes a case cou nt 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 supplementa l jurisdiction over the prisoner’s state

- law clai ms ?
The answer is no.6

The text of the A ct and o ur decision in Th ompson v. DEA

, 492 F.3d 428 (D.C . Cir. 2007)

, guide our analysis

. In Thompson

, this Court held that dismissals for lack o f jurisdiction do not count as strike s

. 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 ac tion 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 cl aim within

an action or appeal falls outside s ection 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 u pon which relief may be granted ”).

Our Thompson decision is consistent with the deci sions 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.3 d 287, 288 (5 th 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 (11 th Cir. 2016) (internal ci tation 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 a7

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 o n enumerated grounds in order for the dismissal to count as a strike.”); Taylor v. Hull

, 538 F . App ’x 734, 735 (8 th Cir. 2013) (internal citation omitted) (“The plain language in § 1915(g) requires that the
entire action be dismissed on one or m ore of thre e enumerated grounds, i.e., as frivolous, malicious, or for failing to state a
claim. ”); Tolbert v. Stevenson , 635 F.3d 646, 651 (4 th 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 pris oner’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 (7 th 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 (9 th Cir. 2005) ( prior dismissal qualifies as a strike only
if the acti on was “dismissed because it was frivolous, malicious
or failed to state a claim ”)

.

As we held in Thompson

, i f 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 suppl emental jurisdiction over state

law claims , the court has not dismissed the state

- law claims for failure to state a claim, nor has the court dismissed the state

law claims as frivolous or m alicious. Therefore, a case in which a court declines to exercise supplemental jurisd iction

over state

- law claims does not count as a strike.

The G ov ernment argues that this approach will allow prisoners to avoid accruing strikes by just willy

- nilly adding8

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

, r ather than declining to exercise supp lemental jurisdiction over the state

law 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 i s 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
defe ndants in prisoner litigation.

That may be true, but we nonetheless must stick to the text
of the statute. I t is not a judge’s job to add to or otherwise re

mold 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 s ay 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 shoul d “count as a9

strike.” Fourstar v. Zemyan , No. 4:08

- cv

- 50 (D. Mont. Aug. 26, 2008).

W hat 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 p risoner from proceeding in forma pauperis only if that
district court determines that a prison er 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 t o bind later district courts, Congress could have said so in the PLRA. Congress said no such thing.

The Govern ment’s argument, if accepted, would produce grossly inequitable and even absurd r esults. Because district

courts are not statutorily obligated to contemporaneously label dismissals as strikes, some district courts do so but some district courts do not. B ut 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 stemmi ng the tide of prisoner litigation. Indeed, p erhaps in recognition of that point
and to avoid confusion , the Second Circuit has i nstructed
district courts in that circuit not to contemporaneously label10

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 distric t courts to identify potential
strikes in a prisoner’s litigation history. But a prisoner may be
barred from proceedin g 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 juris diction 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

. S econd, 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 t herefore has only one strike and may pro ceed in forma pauperis and
maintain his new suit.

2 To b e 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 ma y not relitigate the underlying merits of those past dismissals. Thompson , 492
F.3d at 4 38

- 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.