Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the

Clerk of any formal errors in order that corrections may be made before the

bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided August 12, 2011

No. 10-5234

IN RE: ANTOINE JONES,

PETITIONER

On Motion for Leave to Proceed In Forma Pauperis

Antoine Jones, appearing pro se, was on the motion for

leave to proceed in forma pauperis.

Before: GINSBURG, ROGERS, and BROWN, Circuit Judges.

PER CURIAM: The question in this case is whether a

dismissal of a complaint for failure to state a claim based on

Heck v. Humphrey, 512 U.S. 477 (1994), counts as a “strike”

under the Prison Litigation Reform Act (“PLRA”), 38 U.S.C.

§ 1915(g). For the following reasons, we hold that it does. 

I.

Antoine Jones petitioned this court on July 14, 2010, for a

writ of mandamus to compel the district court to grant him in

forma pauperis status and permit him to file his civil rights
2

damages suit pursuant to 42 U.S.C. § 1983. Jones also has

moved for leave to proceed on appeal in forma pauperis. At the

time of these filings, Jones was an inmate at the United States

Penitentiary in Florence, Colorado. This court held in abeyance

consideration of Jones’ mandamus petition and two motions for

leave to appeal in forma pauperis, pending a decision on

whether the PLRA’s filing-fee requirements, 28 U.S.C.

§ 1915(b), apply to a petition for a writ of mandamus seeking to

compel the district court to file civil pleadings. See In re

Antoine Jones, No. 09-5085 (D.C. Cir. argued Oct. 10, 2010)

(hereinafter, “Jones I”). 

Following the court’s decision in In re Grant, 635 F.3d

1227, 1232 (D.C. Cir. 2011), and issuance of an order to show

cause in Jones I, the court on April 25, 2011, ordered Jones to

show cause in the instant case why he should not be required to

pay the appellate filing fee before this court would consider his

petition and related motions. It appeared that Jones had, while

incarcerated, filed at least three civil actions or appeals that had

been dismissed on the grounds that they were “frivolous,

malicious, or fail[ed] to state a claim upon which relief may be

granted.” 28 U.S.C. § 1915(g). See Order to Show Cause, In re

Antoine Jones, No. 10-5234 (D.C. Cir. Apr. 25, 2011)

(hereinafter “Jones II”). The April 25, 2011 Order cited: Jones

v. Delaney, 610 F. Supp. 2d 46, 48 (D.D.C. 2009) (dismissed

under § 1915A for failure to state a claim); Jones v. Gikas, No.

07cv1068, 2008 WL 2202264 (D.D.C. May 27, 2008)

(dismissed for failure to state a claim based on Heck v.

Humphrey); Jones v. Kirchner, No. 07cv1063, 2008 WL

2202220 (D.D.C. May 27, 2008) (same); Jones v. Yanta, No.

07cv1172, 2008 WL 2202219 (D.D.C. May 27, 2008) (same).

II.

Section 1915(g) provides:
3

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). Under Heck v. Humphrey, a section 1983

damages claim that is based on conduct whose unlawfulness

would demonstrate the invalidity of a conviction or sentence is

not cognizable unless the conviction or sentence has been

invalidated or called into question by issuance of a writ of

habeas corpus. 512 U.S. at 486–87. In Heck v. Humphrey, the

prisoner’s complaint alleged that his conviction violated his

constitutional rights. Id. at 479. The Court held that in order to

recover damages for an allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid, a

section 1983 plaintiff must prove that the conviction or sentence

has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make

such determination, or called into question by a federal court’s

issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” 512

U.S. at 486–87. The Court clarified, however, that “if the

district court determines that the plaintiff’s action, even if

successful, will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff, the action

should be allowed to proceed . . . .” Id. at 487 (emphasis in

original). Jones does not deny that three of the four cited cases

were dismissed for failure to state a claim under Heck v.

Humphrey. See Pet’r’s Response 1–3.
4

The circuit courts of appeal to address the question have

held that the dismissal of a section 1983 lawsuit for damages

based on prematurity under Heck v. Humphrey is for failure to

state a claim, and constitutes a “strike” under the PLRA, 28

U.S.C. § 1915(g). See Smith v. Veterans Admin., 636 F.3d 1306,

1312 (10th Cir. 2011) (citing Davis v. Kan. Dep’t of Corr., 507

F.3d 1246, 1248, 1249 (10th Cir. 2007)); see also Hamilton v.

Lyons, 74 F.3d 99, 103 (5th Cir. 1996); cf. McCurdy v. Sheriff of

Madison County, 128 F.3d 1144, 1145 (7th Cir. 1997). The

Tenth Circuit in Smith held, relying on its precedent in Davis,

that because the favorable termination of a habeas case or direct

appeal is an “essential element of a prisoner’s civil claim for

damages brought under 42 U.S.C. § 1983,” 636 F.3d at 1312

(emphasis in original), the plaintiff’s “failure to allege this

essential element of his § 1983 claim was a failure to state a

claim,” id. The Fifth Circuit is in agreement, holding that “a

plaintiff who seeks to recover damages under section 1983 for

actions whose unlawfulness would render a conviction or

sentence invalid must first prove that the conviction or sentence

has been reversed, expunged, invalidated, or otherwise called

into question.” Hamilton, 74 F.3d at 102. 

We conclude that this result is consistent with Heck v.

Humphrey, 512 U.S. at 486–87. There, the Supreme Court

derived the claim for an allegedly unconstitutional conviction or

imprisonment from the common law tort action of malicious

prosecution, noting that “[o]ne element that must be alleged and

proved in a malicious prosecution action is termination of the

prior criminal proceeding in favor of the accused.” 512 U.S. at

484 (emphasis added). Consequently, we join the Fifth and

Tenth Circuits in holding that in the absence of proof “that the

conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question

by a federal court’s issuance of a writ of habeas corpus,” id. at
5

487, the plaintiff has failed to state a claim for purposes of

section 1915(g).

When Jones filed the four prior section 1983 civil rights

damages lawsuits, three of which were dismissed under Heck v.

Humphrey, his conviction had not yet been overturned. To that

extent, his section 1983 claims were premature under Heck v.

Humphrey. The fact that this court subsequently reversed Jones’

conviction, see United States v. Maynard, 615 F.3d 544 (D.C.

Cir. 2010), does not alter that conclusion.1

 

Accordingly, because Jones, while incarcerated, had filed

at least three civil actions that were dismissed on the ground that

they were frivolous, malicious, or failed to state a claim, and he

has neither offered any valid reason why he should not be

required to pay in full the appellate filing fee before this court

will consider his mandamus petition, nor claimed he is in

imminent danger within the meaning of the exception under

section 1915(g) to the PLRA’s three-strikes provision, the court

will deny Jones’ motion for leave to appeal in forma pauperis

and order Jones to pay the full fee before the court will consider

his petition. 

1

 On June 27, 2011, the Supreme Court granted the

government’s petition for certiorari to review the reversal of Jones’

conviction. See United States v. Jones, __ S. Ct. __, 2011 WL

1456728 (No. 10-1259). Issuance of the mandate of this court,

reversing Jones’ conviction, has been withheld pending the Supreme

Court’s final disposition. See Order, No. 08-3034 (D.C. Cir. Apr. 7,

2011).