20-1644-pr

Maurice Cotton v. New York State Office et al

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

 

August Term 2023 

(Argued: September 21, 2023 Decided: March 14, 2024) 

Docket Nos. 20-1644-pr, 20-2710-pr

 

MAURICE COTTON, 

 Plaintiff-Appellant, 

v.

JOSEPH H. NOETH, ANNE MARIE MCGRATH, J. WOLCOTT, 

JOEY CLINTON, D. CLARY, T. BARBER, MICHAEL CAPRA, 

M. KOPP, C. JAMISON, S. DEGROAT, 

 Defendants. 

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

 

Before: WALKER, CHIN, and NATHAN, Circuit Judges. 

 

Appeal from a decision and order of the United States District Court 

for the Western District of New York (Sinatra, J.), denying the request of an 
2 

inmate to proceed in forma pauperis in a civil rights lawsuit filed in 2018. The 

district court denied the request, concluding that the inmate had accumulated 

three strikes under the Prison Litigation Reform Act in connection with 

dismissals of lawsuits he filed in 1991, 2006, and 2007, all in the Western District 

of New York. 

VACATED AND REMANDED. 

Judge Walker concurs in part and dissents in part in a separate 

opinion.

 

RONA PROPER (Gregory Dubinsky, on the brief), Holwell 

Shuster & Goldberg, for Plaintiff-Appellant. 

Sarah L. Rosenbluth, Assistant Solicitor General, for 

Letitia James, Attorney General of the State of 

New York, as Amicus Curiae.1

 

CHIN, Circuit Judge: 

 On December 6, 2018, plaintiff-appellant Maurice Cotton filed this 

case pro se in the United States District Court for the Western District of New 

York (Sinatra, J.), alleging, inter alia, that he was wrongfully denied a transfer 

1 The case was dismissed by the district court before the named defendants were 

served. The Attorney General, however, submitted a brief on appeal as amicus curiae. 
3 

from one New York prison facility to another and retaliated against for filing 

grievances in connection with the transfer request. He sought declaratory and 

injunctive relief and monetary damages. Cotton also filed with the complaint a 

motion for leave to proceed in forma pauperis ("IFP"). See 28 U.S.C. § 1915(b) 

(allowing indigent prisoners to pay filing fees through a structured payment 

plan linked to their prison accounts). The district court denied Cotton's motion 

for IFP status, concluding that he had accumulated "at least three" strikes under 

the Prison Litigation Reform Act (the "PLRA"), 28 U.S.C. § 1915(g). Cotton 

appeals. 

 We hold that the district court erred in denying Cotton's request for 

IFP status because it incorrectly held that each of the three lawsuits it considered 

counted as a PLRA strike. Accordingly, we VACATE and REMAND for further 

proceedings. 

BACKGROUND

Cotton is serving a twenty-five-year sentence at the Green Haven 

Correctional Facility ("Green Haven") for attempted murder, assault, and 

criminal possession of a weapon. He has filed numerous lawsuits during his 

time in prison; the district court counted at least nineteen in federal courts in the 
4 

State of New York. On December 6, 2018, Cotton filed the instant lawsuit under 

42 U.S.C. § 1983, seeking declaratory and injunctive relief and monetary damages

from corrections officials at Green Haven ("defendants"). He alleged that he was 

wrongfully denied a transfer to Sing Sing Correctional Facility, where there was 

a program by which he could obtain a master's degree from the State University 

of New York or the City University of New York. Cotton further alleged that

defendants retaliated against him for filing grievances connected to the transfer 

request. Cotton also moved for leave to proceed IFP. 

On March 6, 2020, the district court denied Cotton's motion for IFP

status; it concluded that Cotton had previously filed "at least three" lawsuits that 

were dismissed as either frivolous or malicious or for failure to state a claim, 

thereby constituting "strikes" under the PLRA. The PLRA bars a prisoner from 

proceeding IFP after receiving three such strikes, unless he is "under imminent 

danger of serious physical injury." See 28 U.S.C. § 1915(g). 

The district court specifically considered the following lawsuits: 

(1) Cotton v. McCarthy, No. 06 Civ. 477, 2009 WL 3165606 (W.D.N.Y. Sept. 2009) 

("McCarthy"), where the court dismissed Cotton's federal claims under Rule 

12(b)(6) of the Federal Rules of Civil Procedure and declined to exercise 
5 

supplemental jurisdiction over his related state-law claims; (2) Cotton v. Titone, 

No. 91 Civ. 697 (not reported) (W.D.N.Y. Nov. 8, 1991) ("Titone"), where the court 

dismissed Cotton's complaint for failure to comply with Rule 8 of the Federal 

Rules of Civil Procedure; and (3) Cotton v. Lema, No. 08 Civ. 326 (not reported) 

(W.D.N.Y. Nov. 18, 2008) ("Lema"), where the court dismissed Cotton's complaint 

as premature pursuant to 28 U.S.C. § 1915(e)(2)(B), relying on Heck v. Humphrey, 

512 U.S. 477, 486-87 (1994) (holding that a Section 1983 plaintiff may not seek 

damages for an allegedly unconstitutional conviction or sentence unless the 

conviction or sentence has been invalidated). 

On April 2, 2020, Cotton moved for reconsideration. On May 18, 

2020, while the motion for reconsideration was pending, Cotton filed a notice of 

appeal -- the operative notice for the instant appeal. On July 16, 2020, the district 

court denied the motion for reconsideration. The court ordered Cotton to pay 

the filing fee by August 15, 2020, or the case would be dismissed without 

prejudice. The court directed the Clerk of Court to close the case if the fee was 

not paid by that date. Cotton did not pay the filing fee, but the district court did 

not issue a final order of dismissal, nor did the Clerk of the Court close the case. 
6 

Even assuming the district court's order denying the IFP motion was 

not a final order, and this appeal is therefore an interlocutory appeal, this Court 

has appellate jurisdiction under the collateral order doctrine of Cohen v. Beneficial 

Indus. Loan Corp., 337 U.S. 541 (1949). See, e.g., Sears, Roebuck & Co. v. Charles W. 

Sears Real Est., Inc., 865 F.2d 22, 23 (2d Cir. 1988) (per curiam) ("An interlocutory 

appeal may be taken from an order denying leave to proceed in forma pauperis 

under [Cohen]." (collecting cases)). 

DISCUSSION 

We review a district court's denial of IFP status pursuant to 28 

U.S.C. § 1915 de novo. Shepherd v. Annucci, 921 F.3d 89, 93 (2d Cir. 2019) (citation 

omitted). 

Cotton contends, and the Attorney General agrees, that the district 

court erred in finding that the McCarthy and Titone lawsuits counted as strikes 

under the PLRA. First, we address whether those two lawsuits constitute PLRA 

strikes. We find that they do not. Second, although that ruling is a sufficient 

basis to vacate and remand, for the reasons discussed below, we nonetheless 

address whether the Lema dismissal pursuant to Heck v. Humphrey also counts as 

a PLRA strike. We conclude that it does not. Accordingly, we vacate the district 
7 

court's denial of Cotton's request for IFP status and remand for further 

proceedings. 

I. Applicable Law 

The relevant provision of the PLRA 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); see, e.g., Chavis v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010) 

("Section 1915(g) . . . denies [IFP status] to so-called 'frequent filers,' prisoners 

who have repeatedly brought legal claims dismissed as frivolous, malicious, or 

not stating a claim; such litigants must pay the filing fee upfront."); Harris v. City 

of N.Y., 607 F.3d 18, 21 (2d Cir. 2010) ("Prisoner-plaintiffs who have accumulated 

three strikes are prohibited by the PLRA from bringing further actions or appeals 

in forma pauperis." (citation omitted)). 
8 

II. Application

We address each of the three lawsuits in turn.

1. The McCarthy Lawsuit 

In McCarthy, Cotton sued the City of Buffalo and city officials, 

asserting a Section 1983 claim and related state-law claims. 2009 WL 3165606 at 

*2. The dismissal was then affirmed by this Court. The district court below 

concluded that this dismissal constituted a PLRA strike because it was dismissed 

under Rule 12(b)(6). But McCarthy was a "mixed dismissal"; the court dismissed 

only Cotton's federal claim under Rule 12(b)(6) and declined to exercise 

supplemental jurisdiction over his state-law claims. This Court has held that to 

constitute a strike, "a prisoner's entire 'action or appeal' must be dismissed on a § 

1915(g) ground . . . ." Escalera v. Samaritan Vill., 938 F.3d 380, 382 (2d Cir. 2019) 

(holding that a "mixed dismissal" of state and federal claims was not a strike, 

where the state-law claims were dismissed not on the merits but for lack of 

subject matter jurisdiction). "Accordingly, mixed dismissals are not strikes." Id. 

McCarthy was therefore not a PLRA strike.
9 

2. The Titone Lawsuit

The district court below was unable to find a decision and order in 

Titone, but relied on the docket sheet to conclude that the dismissal of the lawsuit

constituted a strike because the dismissal was for failure to comply with Rule 8, 

and Cotton was given an opportunity to amend his complaint. No. 91 Civ. 697 

(not reported), Dkt. 4. The Supreme Court has held, however, that where a 

complaint is dismissed but a plaintiff is given leave to amend the complaint, 

there is no strike "because the suit continues" and therefore "the court's action 

falls outside of Section 1915(g)." Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1724 n.4 

(2020). A strike does accrue, however, if the plaintiff files an amended complaint 

and the amended complaint is dismissed for an enumerated reason. Although 

the Titone court allowed Cotton the opportunity to replead, he did not file an 

amended complaint and thus there was no dismissal for a reason enumerated in 

Section 1915(g). See Titone, No. 91 Civ. 697 (not reported), Dkt. 4. Thus, Titone

does not constitute a PLRA strike. 

3. The Lema Lawsuit

Finally, in Lema, Cotton sued the State of New York, the City of 

Buffalo, and state and city officials, asserting a Section 1983 claim based on
10 

proceedings that preceded and followed his arrest and imprisonment. No. 08 

Civ. 326 (not reported), Dkt. 5 at 1. The court dismissed Cotton's complaint, sua 

sponte, explaining -- twice -- that the case was premature. First, the Lema court 

wrote:

It may be that plaintiff is filing this claim prophylactically, 

within the statute of limitations for a § 1983 action, in response 

to Wallace v. Kato, 549 U.S. 384, 127 S. Ct. 1091 (2007) and 

understands that his case must be dismissed without 

prejudice as premature until he succeeds in the challenge of 

his conviction. 

Dkt. 5 at 7 n.1. Second, it added: 

Plaintiff's claims are dismissed without prejudice as 

premature until he has succeeded in overturning his 

conviction, the validity of which his claims impugn.

Id. at 8. 

The district court below held that the Lema dismissal constituted a 

strike, relying on Heck v. Humphrey, noting that other district courts in this circuit 

have held that Heck dismissals are PLRA strikes. See, e.g., Toliver v. Colvin, No. 

12-CV-00227V(F), 2016 WL 11258222, at *10 (W.D.N.Y. Sept. 28, 2016), report and 

recommendation adopted as modified, No. 12-CV-227(LJV)(LGF), 2017 WL 547963 

(W.D.N.Y. Feb. 10, 2017); McDaniels v. Fed. Bureau of Prisons, No. 15-cv-6163 
11 

(KMK), 2016 WL 6997525, at *4 (S.D.N.Y. Nov. 29, 2016). The district court noted, 

however, that the Second Circuit had not yet ruled on the issue. 

The Attorney General argues that we need not decide whether the 

Lema dismissal constitutes a strike. We conclude there is good reason to reach 

the question. Article III requires, inter alia, that a dispute be ripe for adjudication: 

that is, "it must present a real, substantial controversy, not a mere hypothetical 

question." Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 (2d Cir. 2013) 

(citation omitted). Ripeness has both constitutional and prudential dimensions. 

Constitutional ripeness is "a limitation on the power of the judiciary . . . . But 

when a court declares that a case is not prudentially ripe, it means that the case 

will be better decided later and that the parties will not have constitutional rights 

undermined by the delay." Id. at 688 (quoting Simmonds v. INS, 326 F.3d 351, 357 

(2d Cir. 2003)). 

Whether Cotton has two or three PLRA strikes remaining is a 

dispute both constitutionally and prudentially ripe for adjudication. It is 

constitutionally ripe because it is a live controversy affecting Cotton's rights 

-- any strike could impact Cotton's ability to bring future cases. This dispute is 

also prudentially ripe for adjudication because (1) whether Lema counts as a 
12 

strike is a purely legal question involving no future contingencies; (2) leaving the 

issue unresolved could impose a hardship on Cotton by affecting his ability to 

sue in the future; and (3) deciding the question would not impose hardship on 

the State because it, like Cotton, has an interest in judicial efficiency and 

clarification of the law. We therefore address the Lema dismissal here. 

The circuits that have considered the issue are split as to whether 

Heck dismissals count as PLRA strikes. See Lomax, 140 S. Ct. at 1724 n.2 (noting 

the circuit split but not reaching the issue). The Third, Fifth, Tenth, and D.C. 

Circuits agree that Heck dismissals always count as PLRA strikes. See, e.g., 

Garrett v. Murphy, 17 F.4th 419, 427 (3d Cir. 2021) ("We now join the Fifth, Tenth, 

and D.C. Circuits in holding that the dismissal of an action for failure to meet 

Heck’s favorable-termination requirement counts as a PLRA strike for failure to 

state a claim."). The Seventh Circuit, however, has expressly adopted the 

position Cotton is arguing here. See, e.g., Mejia v. Harrington, 541 F. App'x 709, 

710 (7th Cir. 2013) (unpublished) ("Heck . . . deal[s] with timing rather than the 

merits of litigation . . . . As a result, neither this suit nor the appeal counts as a 

'strike' under § 1915(g)."); see also Courtney v. Butler, 66 F.4th 1043, 1049 n.1 (7th 
13 

Cir. 2023) (noting that the Seventh Circuit is in the "jurisdictional affirmativedefense camp"). 

The Ninth Circuit has taken a qualified position, holding that "[a] 

Heck dismissal is not categorically frivolous -- that is, having 'no basis in law or 

fact,'" because "plaintiffs may have meritorious claims that do not accrue until 

the underlying criminal proceedings have been successfully challenged." 

Washington v. L.A. Cnty. Sheriff's Dep't, 833 F.3d 1048, 1055 (9th Cir. 2016) 

(citation omitted). At the same time, the Ninth Circuit observed that "so-called 

Heck dismissals come in various guises," id. at 1056, and concluded that a Heck 

dismissal can constitute a PLRA strike for failure to state a claim depending on 

the circumstances.2 Id. at 1055-56. 

 We agree that Heck dismissals do not categorically count as a strike. 

Rather, we hold that whether a Heck dismissal qualifies as a strike depends on 

2 The Ninth Circuit in Washington was of the view that a Heck dismissal can 

constitute a PLRA strike for failure to state a claim "when Heck's bar to relief is obvious 

from the face of the complaint, and the entirety of the complaint is dismissed for a 

qualifying reason under the PLRA." Washington, 833 F.3d at 1055. While we agree that 

the entirety of a complaint must be dismissed for a qualifying reason for the dismissal 

to count as a strike, we do not agree that a dismissal counts as a strike merely because 

the Heck bar is "obvious from the face of the complaint." As discussed below, there may 

be circumstances where a Heck dismissal should not count as a strike even if the Heck

bar is obvious on the face of the complaint. 
14 

the circumstances. The key is whether the dismissal turned on the merits or 

whether it was simply a matter of sequencing or timing. As we have explained, 

the rule created by the Supreme Court in Heck is an "accrual rule designed to 

avoid inconsistent results and new avenues of collateral attack." Smalls v. Collins, 

10 F.4th 117, 137 (2d Cir. 2021) (citing Heck, 512 U.S. at 486-89). Heck dismissals 

therefore do not reflect a final judgment on the merits; instead, such dismissals 

"reflect a matter of 'judicial traffic control' and prevent civil actions from 

collaterally attacking existing criminal judgments." Washington, 833 F.3d at 1056 

(citation omitted); see also Mejia, 541 F. App'x at 710 ("Heck and Edwards deal with 

the timing rather than the merits of litigation. Until the conviction or 

disciplinary decision is set aside, the claim is unripe . . . . Heck and Edwards do 

not concern the adequacy of the underlying claim for relief."). 

 Outside the Heck v. Humphrey context, this Court has held that 

dismissals for prematurity do not count as PLRA strikes. Heck dismissals are 

analogous to dismissals for failure to exhaust administrative remedies, and we 

have held that "a dismissal by reason of a remediable failure to exhaust should 

not count as a strike." Snider v. Melindez, 199 F.3d 108, 115 (2d Cir. 1999); see id. 

("[W]e do not believe that failure to exhaust qualifies as failure to state a claim in 
15 

the context of the PLRA. Nor would an action be rendered 'frivolous' by a failure 

to exhaust that was remediable."); see also Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 

2007) (holding that "dismissal because of the prematurity of [a] suit does not 

qualify as a strike" because the PLRA "was designed to stem the tide of 

egregiously meritless lawsuits, not those temporarily infected with remediable 

procedural flaws") (citations omitted). 

As our cases suggest, one consideration is remediability. There may 

be cases where it is apparent from the complaint that Heck is an irremediable bar 

-- for example, if it is clear from a complaint that a plaintiff can no longer 

challenge an underlying conviction (e.g., for timing reasons or because he has 

already done so), the Heck dismissal should count as a strike because the failure 

to invalidate the conviction is irremediable. In these circumstances, the Heck

dismissal would constitute a final judgment on the merits. But a dismissal under 

Heck "without prejudice as premature until [plaintiff] has succeeded in 

overturning his conviction," Lema, No. 08 Civ. 326, Dkt. 5 at 8, is not a PLRA 

strike because it is not "irremediably defective, and dismissal of such [a case] is 

not based on a determination that it ultimately cannot succeed." Tafari, 473 F.3d 

at 443. 
16 

 As the dissent acknowledges, the "presumption" that Heck

dismissals are strikes because they are Rule 12(b)(6) dismissals "may not be 

absolute." Dissent at 2 & n.2. As we concluded in Snider, dismissals for 

prematurity do not constitute a failure to state a claim "in the context of the PLRA," 

see Snider, 199 F.3d at 115 (emphasis added). In other words, even crediting the 

dissent's conclusion that suits dismissed under Heck functionally do not "state a 

claim" under Rule 12(b)(6) because they lack a present cause of action, those 

dismissals still do not constitute PLRA strikes. While Section § 1915(g) "refers to 

any dismissal for failure to state a claim, whether with prejudice or without," 

Lomax, 140 S. Ct. at 1723, this Court has made clear that "fail[ure] to state a claim" 

was not intended to apply to "suits dismissed without prejudice for failure to 

comply with a procedural prerequisite." Snider, 199 F.3d at 111. 

In light of these considerations, here we conclude that the Lema 

dismissal does not constitute a strike under the PLRA, for the dismissal clearly 

turned on sequencing and timing rather than the merits. The district court in 

Lema twice wrote that the basis for dismissal was prematurity. Its language 

makes clear that it was not passing judgment as to the merits of Cotton's claims 

in the case, but rather that it was dismissing the claims without prejudice to 
17 

Cotton returning to court if he succeeded in overturning his conviction. Indeed, 

the district court surmised that Cotton might have filed the complaint 

"prophylactically," because of concerns that the statute of limitations might run. 

Dkt. 5 at 7 n.1. The district court clearly was of the view that the Heck bar was 

remediable. 

We also note that the Lema court's citation to Section 1915(e)(2)(B) 

did not specify which prong of that subsection the court was invoking. Dkt. 5 at 

8. Because the Lema court may have dismissed Cotton's suit for reasons that are 

permitted under Section 1915(e)(2)(B) but not enumerated in Section 1915(g), it 

would be inappropriate to presume there was a strike. See Byrd v. Shannon, 715 

F.3d 117, 124-25 (3d Cir. 2013). Section 1915(e)(2)(B) provides three separate 

grounds for dismissing a prisoner's claim: the action is "(i) frivolous or 

malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) 

seeks monetary relief against a defendant who is immune from such relief." 28 

U.S.C. §§ 1915(e)(2)(B)(i)-(iii). Thus, the first two grounds for dismissal under 

§ 1915(e)(2)(B) are also grounds for a PLRA strike under Section 1915(g), but the 

third is not. As the Third Circuit has explained, a strike is appropriate only 

where a court gives a basis for dismissal that clearly falls within one of the 
18 

categories enumerated in Section 1915(g). Byrd, 715 F.3d at 126. Given the lack 

of specificity here and the remediable nature of the dismissal, we conclude the 

Lema dismissal was not a PLRA strike. 

CONCLUSION

The district court erred in holding that each of the three lawsuits 

discussed supra counted as a PLRA strike. Thus, we VACATE the district court's 

denial of Cotton's request to proceed IFP and REMAND for further proceedings. 
WALKER, Circuit Judge, concurring in part and dissenting in part: 

I join the majority’s opinion in full through Part II.2, holding 

that the McCarthy and Titone dismissals do not count as strikes under 

28 U.S.C. § 1915(g). I also share its view that the Lema dismissal 

presents a question ripe for our review. I write separately because I 

cannot agree that the Lema dismissal does not count as a strike under 

the Prison Litigation Reform Act (“PLRA”). 

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court 

held that “‘to recover damages for allegedly unconstitutional 

conviction or imprisonment, or for other harm caused by actions 

whose unlawfulness would render a conviction or sentence invalid,’ 

a plaintiff in a [42 U.S.C.] § 1983 action first [must] prove that his 

conviction ha[s] been invalidated in some way.” McDonough v. Smith, 

139 S. Ct. 2149, 2157 (2019) (quoting Heck, 512 U.S. at 486). Absent 

such “favorable termination of his prosecution,” id. at 2156, the 

plaintiff’s action must be dismissed. 

As relevant here, § 1915(g) imposes a so-called “strike” against

an incarcerated plaintiff for each action or appeal he brings in federal 

court that was “dismissed on the grounds that it . . . fails to state a 

claim upon which relief may be granted.” 28 U.S.C. § 1915(g). After 

incurring three strikes, a prisoner may no longer bring a federal suit

in forma pauperis (without paying filing fees).1

1 28 U.S.C. § 1915(g) provides, in full: 

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.
2 No. 20-1644

The majority concludes that an action dismissed under Heck is 

generally not “dismissed on the grounds that it . . . fails to state a 

claim upon which relief may be granted,” 28 U.S.C. § 1915(g), except 

where that dismissal “constitute[d] a final judgment on the merits,” 

Maj. Op. at 15. 

I disagree. When a court dismisses a § 1983 action under Heck, 

it generally does so because the plaintiff has “fail[ed] to state a claim 

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). And the 

Supreme Court has held that “[t]he text of Section 1915(g)’s threestrikes provision refers to any dismissal for failure to state a claim, 

whether with prejudice or without.” Lomax v. Ortiz-Marquez, 140 S.

Ct. 1721, 1723 (2020). Therefore, § 1915(g) presumptively imposes a 

strike for every Heck dismissal.

I. Heck dismissals are governed by Rule 12(b)(6) and Rule 

12(b)(6) dismissals generally count as strikes under 

§ 1915(g). 

“Heck is clear. Suits dismissed for failure to meet Heck’s 

favorable-termination requirement are dismissed because the 

plaintiff lacks a valid ‘cause of action’ under § 1983.” Garrett v. 

Murphy, 17 F.4th 419, 427 (3d Cir. 2021) (quoting Heck, 512 U.S. at 489). 

Favorable termination is an “element that must be alleged and 

proved.” Heck, 512 U.S. at 484. Without it, an action challenging the 

validity of a sentence or conviction “is not cognizable under § 1983.” 

Id. at 488. 

Because Heck determines when a § 1983 suit is “cognizable,” 

Heck dismissals are governed by Rule 12(b)(6). Rule 12(b)(6) 

authorizes dismissal of an action when the initiating complaint 

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. 

P. 12(b)(6). “Claim” is often synonymous with a “cause of action.” 
3 No. 20-1644

See, e.g., Claim, Black's Law Dictionary (11th ed. 2019). So, when a 

plaintiff lacks a cause of action, courts dismiss the case under Rule 

12(b)(6). See, e.g., Hayut v. State Univ. of N.Y., 352 F.3d 733, 742 (2d Cir. 

2003) (“Pursuant to Federal Rule of Civil Procedure 12(b)(6), 

[defendant] moved to dismiss for failure to state a cause of action.”). 

Cases dismissed under Heck are no exception. See, e.g., Peay v. Ajello, 

470 F.3d 65, 68 (2d Cir. 2006). 

The PLRA is also clear. “[C]onstruction” of the PLRA “must 

begin with the language employed by Congress and the assumption 

that the ordinary meaning of the language accurately expresses the 

legislative purpose.” Tafari v. Hues, 473 F.3d 440, 442 (2d Cir. 2007)

(internal quotation marks omitted). Section 1915(g) refers to actions 

dismissed for “fail[ure] to state a claim upon which relief may be 

granted.” 28 U.S.C. § 1915(g). This is “an explicit reference to Fed. R.

Civ. P. 12(b)(6).” Tafari, 473 F.3d at 442 (formatting altered). Given 

this nearly identical language, we typically count actions dismissed 

under Rule 12(b)(6) as PLRA strikes. See, e.g., Griffin v. Carnes, 72 F.4th

16, 21 (2d Cir. 2023) (per curiam) (res judicata dismissals may be 

strikes); Akassy v. Hardy, 887 F.3d 91, 95 (2d Cir. 2018) (statute-oflimitations dismissals may be strikes). Because Heck dismissals are 

Rule 12(b)(6) dismissals, we must presume they are also PLRA 

strikes.2

2 This presumption may not be absolute. While § 1915(g) refers to dismissal 

for “fail[ure] to state a claim upon which relief may be granted,” 28 U.S.C. § 1915(g) 

(emphasis added), Rule 12(b)(6) authorizes dismissal when a pleading “fail[s] to 

state a claim upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6) (emphasis 

added). See Byrd v. Shannon, 715 F.3d 117, 124 (3d Cir. 2013) (noting this 

difference); Escalera v. Samaritan Vill., 938 F.3d 380, 383 n.5 (2d Cir. 2019) (citing 

Byrd) (per curiam). Elsewhere, by contrast, the PLRA mirrors Rule 12(b)(6)’s 

language. See 42 U.S.C. § 1997e(c)(1) (providing that a court “shall” dismiss certain 

actions that “fail[] to state a claim upon which relief can be granted”) (emphasis 

added). Just as we must “construe [identical] phrases consistently across two 
4 No. 20-1644

II. The majority’s analogy between dismissals for failure 

to exhaust administrative remedies and dismissals 

under Heck is inconsistent with both the PLRA and 

Heck. 

The majority’s principal argument to the contrary is that “Heck

dismissals are analogous to dismissals for failure to exhaust 

administrative remedies, and we have held that ‘a dismissal by reason 

of a remediable failure to exhaust should not count as a strike.’” Maj. 

Op. at 14 (quoting Snider v. Melindez, 199 F.3d 108, 115 (2d Cir. 1999)).3 

subsections of the PLRA,” Griffin, 72 F.4th at 21, so, too, must we give effect to 

differences among various phrases. 

“Can” and “may” are not synonymous. Whereas “can” usually refers to the 

present, “may” typically refers to the future. For example, Black’s Law Dictionary

defines “can” as “to be able to do something,” as illustrated by, “you can lift 500 

pounds.” Can, Black's Law Dictionary (11th ed. 2019). But the same Dictionary

defines “may” as “to be a possibility,” e.g., “we may win on appeal.” May, Black's 

Law Dictionary (11th ed. 2019). So, while Rule 12(b)(6) (which uses “can”) refers 

to claims for which no relief is currently available, Section 1915(g) (which uses 

“may”) might refer to claims for which no relief will reasonably become available. 

This distinction may be relevant in some cases. Lomax teaches that whether a 

dismissal for failure to state a claim was “with or without prejudice” does not by 

itself determine whether that dismissal counts as a strike. 140 S. Ct. at 1722. For 

this reason, it does not matter that Cotton could, hypothetically, “return[] to court 

if he succeeded in overturning his conviction” following the Lema dismissal. Maj. 

Op. at 16. But in other cases, the defect might be “simply a matter of sequencing 

or timing.” Maj. Op. at 14. For example, suppose a habeas petitioner has made a 

“substantial showing of the denial of a constitutional right,” but has not yet 

prevailed. 28 U.S.C. § 2253(c)(2). If that petitioner were then to file a premature 

§ 1983 action, Heck would require its dismissal without prejudice. But that 

dismissal would not reflect the usual presumption, operative in Heck-barred cases, 

that the plaintiff’s underlying conviction or sentence was valid. See Heck, 512 U.S. 

at 486. It might therefore be appropriate to say that relief “can” not be granted, 

but “may” yet be granted, such that a strike is not warranted. 

3 The majority also suggests, more broadly, that we have “held that dismissals 

for prematurity do not count as PLRA strikes.” Maj. Op. at 14. We have not. We 
5 No. 20-1644

This analogy has two flaws. First, it departs from the statutory 

text. We treat dismissals for failure to exhaust administrative 

remedies differently from other dismissals under Rule 12(b)(6) 

because the PLRA expressly refers to “exhaustion of administrative 

remedies.” 42 U.S.C. § 1997e(c)(2). The PLRA makes no similar 

reference to Heck dismissals. Second, Heck itself disclaimed the 

majority’s analogy: “We do not engraft an exhaustion requirement 

upon § 1983, but rather deny the existence of a cause of action.” Heck, 

512 U.S. at 489. And for good reason. Heck reflects that state criminal 

convictions are presumptively valid. This presumption of validity is 

difficult indeed for any would-be § 1983 plaintiff to dislodge. 

a. The PLRA treats dismissals for failure to exhaust 

administrative remedies differently from 

dismissals under Heck. 

The majority erroneously draws its analogy from our decision

in Snider. See Maj. Op. at 14. There, we engaged in a careful textual 

analysis of 42 U.S.C. § 1997e(c)(2), a provision of the PLRA not at issue 

here. Section 1997e(c) refers expressly to “the exhaustion of 

administrative remedies,” 42 U.S.C. § 1997e(c)(2), in actions “brought 

with respect to prison conditions,” id. at § 1997e(c)(1). We recognized 

that the “interplay” between § 1997e(c)’s constituent parts “would 

make little sense if failure to state a claim included failure to exhaust” 

did state in Tafari that “dismissal because of the prematurity of a suit does not 

qualify as a strike.” Maj. Op. at 15 (quoting Tafari, 473 F.3d at 443) (alteration 

omitted). But that case “only” concerned “the narrow issue of whether the 

premature filing of an appeal is ‘frivolous’ for the purposes of § 1915(g).” Tafari, 

473 F.3d at 442. And the appeal at issue had been dismissed for lack of jurisdiction 

under 28 U.S.C. § 1291. See Tafari v. Moscicki, 01-0035 (2d Cir.), Dkt. Entry Aug. 8, 

2001 (noting basis for dismissal). Tafari is therefore twice distinguishable from this 

case: first, Tafari concerned “the premature filing of an appeal,” not a Heck-barred 

claim; and second, it considered whether that appeal was “frivolous,” not whether 

it “fail[ed] to state a claim upon which relief [might] be granted,” 28 U.S.C. § 

1915(g). Rule 12(b)(6) was “not implicated.” Tafari, 473 F.3d at 442. 
6 No. 20-1644

administrative remedies. Snider, 199 F.3d at 111. With this in mind, 

we concluded that the strike provision, § 1915(g), did not encompass 

dismissals for failure to exhaust administrative remedies. 

No such textual considerations apply here. Whereas

§ 1997e(c)(2) explicitly invokes failure to exhaust administrative 

remedies, § 1915(g) nowhere mentions Heck or the principles 

underlying that decision.4 So, there is no special “interplay” to 

consider when analyzing Heck dismissals under the strike provision. 

Snider, 199 F.3d at 111. Instead, we must presume from “the language 

employed by Congress” that dismissals under Heck are no different 

from other dismissals under Rule 12(b)(6). Tafari, 473 F.3d at 442. 

b. Dismissals for failure to exhaust administrative 

remedies are not analogous to dismissals under 

Heck. 

Nor do any rough similarities between Heck and administrative 

exhaustion support the majority’s position. Heck expressly rejected 

the majority’s comparison: “We do not engraft an exhaustion 

requirement upon § 1983, but rather deny the existence of a cause of 

4 Elsewhere, the PLRA distinguishes between suits challenging prison 

conditions (which are covered by § 1997e(c)) and suits challenging the validity of 

a conviction or sentence (which are not): 

[T]he term “civil action with respect to prison conditions” means any civil 

proceeding arising under Federal law with respect to the conditions of 

confinement or the effects of actions by government officials on the lives of 

persons confined in prison, but does not include habeas corpus 

proceedings challenging the fact or duration of confinement in prison.

18 U.S.C. § 3626(g)(2) (emphasis added). Thus, the PLRA reflects that, under Heck, 

habeas petitions—and not § 1983 suits—are the primary mechanism for challenging 

“the fact or duration” of one’s confinement. See Heck, 512 U.S. at 481. The statute’s 

implicit recognition of Heck’s division of adjudicatory labor furnishes additional 

reason not to read § 1997e(c)’s reference to “the exhaustion of administrative 

remedies” into § 1915(g)’s strike provision. 
7 No. 20-1644

action.” 512 U.S. at 489 (emphasis added). This is an important 

distinction, both legally and practically. 

i. Unlike Heck, administrative-exhaustion 

requirements do not affect statutes of 

limitations and do not implicate the 

finality of criminal convictions. 

There are two crucial legal differences between Heck dismissals 

and failure-to-exhaust dismissals.

First, as Heck explained, the two kinds of dismissals have 

different implications for statutes of limitations. When Heck applies, 

a § 1983 claim does not accrue until after the contested judgment is 

invalidated. As a result, a § 1983 plaintiff need not seek equitable 

tolling of a statute of limitations to preserve his claim “while state 

challenges to the conviction or sentence [are] being exhausted.” Id.; 

see also id. at 499 (Souter, J., concurring in the judgment). By contrast, 

when Heck does not apply, the limitations period may continue to run 

while a § 1983 plaintiff exhausts his administrative remedies. See id.

at 489. Thus, conflating Heck’s rule and exhaustion of administrative 

remedies creates an inconsistency: it treats Heck as creating an 

administrative bar for purposes of the PLRA, but a claim-accrual rule 

for purposes of § 1983. 

Second, and more fundamentally, Heck reflects concern for 

finality, not just ripeness. Invalidating a prior conviction or sentence 

ordinarily requires impugning a judgment entitled to the 

“presumption of regularity.” Daniels v. United States, 532 U.S. 374, 381 

(2001). Partly for this reason, the Supreme Court understood Heck as 

applying the “hoary principle that civil tort actions are not 

appropriate vehicles for challenging the validity of outstanding 

criminal judgments.” Heck, 512 U.S. at 486. No such presumption of 

regularity arises, however, when exhausting administrative 
8 No. 20-1644

remedies. To the contrary, because exhaustion requires no success on 

the merits, a failure to exhaust may be “simply” cured. Snider, 199 

F.3d at 112. In short, we typically presume that a Heck-barred claim 

may never be brought, but that an exhaustion-barred claim may be. 

ii. In practice, overcoming Heck’s bar is 

generally far more onerous than 

exhausting administrative remedies. 

These presumptions matter practically. In Snider, we observed 

that “[i]f the time permitted for pursuing administrative remedies has 

not expired, a prisoner who brings suit without having exhausted 

these remedies can cure the defect simply by exhausting them and 

then reinstituting his suit” if necessary. 199 F.3d at 111–12. Heck does 

not admit of such a “simpl[e]” solution. Id. at 112. A potential § 1983 

plaintiff must first seek to have his “conviction or sentence”—which 

enjoys a presumption of regularity—"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.” Heck, 512 U.S. at 

487. Even under the best of circumstances, overcoming Heck is no 

easy feat. 

The majority’s contrary suggestion undermines Congress’s 

intent. “Congress enacted the PLRA to curb the increasing number of 

civil lawsuits filed by prisoners.” In re Nagy, 89 F.3d 115, 117 (2d Cir. 

1996). Congress’s “theory was that a ‘flood of nonmeritorious claims,’ 

even if not in any way abusive, was ‘effectively preclud[ing] 

consideration of’ suits more likely to succeed.” Lomax, 140 S. Ct. at 

1726 (quoting Jones v. Bock, 549 U.S. 199, 203 (2007)). Yet the majority 

largely reads Heck-barred suits out of § 1915(g)’s strike provision. 

And it does so based upon the false premise that Heck’s bar is easily 

overcome. This holding permits nearly every prisoner who has not 
9 No. 20-1644

yet sought to invalidate his conviction—no matter the merits of his 

potential challenge—to file a separate § 1983 claim free from 

§ 1915(g)’s strictures, thereby frustrating congressional intent.

To sum up: Heck dismissals have little in common with 

administrative-exhaustion dismissals, whether under the PLRA, 

broader legal principles, or practically. Heck dismissals therefore 

must fall under the general rule applicable to all Rule 12(b)(6) 

dismissals: they presumptively count as strikes under § 1915(g). 

III. The district court properly treated the Lema dismissal 

as a strike.

In view of these principles, the Lema dismissal should count as 

a PLRA strike. Nothing in Lema indicated that Heck’s bar could be

overcome. Moreover, contrary to the majority’s characterization, the 

Lema court clearly stated that its order of dismissal rested upon a 

strike-worthy basis.5

5 The majority implies that for a Heck dismissal to count as a PLRA strike, Heck’s 

application must be “obvious on the face of the complaint.” Maj. Op. at 13 n.2 

(“[T]here may be circumstances where a Heck dismissal should not count as a 

strike even if the Heck bar is obvious on the face of the complaint.”). So far, we 

have adopted similar requirements only for dismissals based upon “‘waivable 

defense[s] that a court is nonetheless free to raise sua sponte’ and may consider on 

a Rule 12(b)(6) motion.” Griffin, 72 F.4th at 21 (quoting Walters v. Indus. & Com. 

Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011)). Heck, by contrast, creates an 

element of a § 1983 action that “must be alleged and proved,” not an affirmative 

defense. Heck, 512 U.S. at 484. And we have not yet addressed whether Heck’s bar 

is waivable—a question as to which “[o]ther circuits have reached varying 

conclusions.” Greathouse v. Meddaugh, No. 22-2834, 2023 WL 5439456, at *3 n.2 (2d 

Cir. Aug. 24, 2023) (summary order). Thus, it is doubtful whether the PLRA 

permits the rule that the majority crafts for Heck dismissals. 

In any event, application of that rule would make no difference here. That 

Heck barred Cotton’s complaint in Lema was plain. Cotton initially alleged, in 

relevant part, that he was unlawfully arrested and prosecuted for an alleged April 

26, 2006 assault. See Dkt. 1 at 5–6 (complaint); Dkt. 4 at 1–5 (amended complaint). 
10 No. 20-1644

a. Cotton had not defeated the presumption that his 

underlying conviction remained valid.

The majority concludes that the Lema dismissal “clearly turned 

on sequencing and timing rather than the merits.” Maj. Op. at 16. But 

Lema, like every other Heck dismissal, did implicate the merits: it 

turned upon Cotton’s lack of a “cause of action.” Heck, 512 U.S. at 489.

Heck’s application to Lema was no mere temporary defect. 

When Cotton filed the Lema action under § 1983, he had made no 

colorable showing that his underlying conviction was invalid. The 

majority suggests that Cotton may have filed the Lema case 

“prophylactically” (though mistakenly) in response to Wallace v. Kato, 

549 U.S. 384 (2007).6 Maj. Op. at 10, 17 (quoting Dkt. 5 at 7 n.1). But 

Cotton—who is now represented by counsel—has not indicated that 

he ever collaterally challenged his conviction in Lema. Indeed, the 

Lema court noted that Cotton had brought a similarly Heck-barred 

claim in another action. See Dkt. 5 at 3 (observing that Cotton 

attempted to raise § 1983 claims concerning the same underlying 

conviction in McCarthy); Cotton v. McCarthy, No. 06-CV-477S, Dkt. 8 

at 4 (denying leave to amend the complaint because new allegations 

concerning that conviction were likely Heck-barred). When the Lema

action was dismissed, Cotton had done nothing to undermine his 

The Lema court warned Cotton before ruling on his complaint that “absent 

invalidation of the criminal conviction, such a claim does not constitute a 

cognizable cause of action under § 1983.” Dkt. 5 at 2; Dkt. 3 at 8–9 (citing Heck). 

Cotton amended his complaint, but Heck’s bar remained. So, the Lema court 

dismissed the action sua sponte. See Dkt. 5 at 8. This was not a case in which Heck’s 

effect was in doubt. 

6 Wallace held that the limitations period for an unlawful-arrest claim under § 

1983 begins “once the victim becomes held pursuant to [legal] process—when, for 

example, he is bound over by a magistrate or arraigned on charges.” Wallace, 549 

U.S. at 389 (emphasis omitted). 
11 No. 20-1644

conviction’s “presumption of regularity.” Daniels, 532 U.S. at 381. 

b. The Lema court articulated the basis for its 

judgment with sufficient clarity.

Finally, the majority suggests in dicta that the Lema court’s order 

dismissing the action was insufficiently clear. This ignores the Lema

court’s express holding that Cotton had failed to state a claim upon 

which relief might be granted.

Citing the Third Circuit’s decision in Byrd v. Shannon, 715 F.3d 

117, 126 (3d Cir. 2013), the majority states: “a strike is appropriate only 

where a court gives a basis for dismissal that clearly falls within one 

of the categories enumerated in Section 1915(g).” Maj. Op. at 17–18. 

Under the relevant portion of Byrd, a strike accrues only when an 

entire action is “(1) dismissed explicitly because it . . . ‘fails to state a 

claim’ or (2) dismissed pursuant to a statutory provision or rule that 

is limited solely to dismissals for such reasons, including (but not 

necessarily limited to) . . . [§] 1915(e)(2)(B)(ii).” Byrd, 715 F.3d at 126.7 

Byrd provides no basis for removing Lema from § 1915(g)’s 

ambit. The majority claims that “the Lema court's citation to Section 

1915(e)(2)(B) did not specify which prong of that subsection the court 

was invoking.” Maj. Op. at 17. That is incorrect. The Lema court 

stated: “plaintiff's claims must be dismissed without prejudice 

pursuant to 28 U.S.C. §§ 1915(e) (2) (B) (ii) and 1915A(b) because they 

fail to state a claim upon which relief may be granted.” Dkt. 5 at 2. 

Byrd creates a disjunctive test: it requires either that a district court 

state explicitly that the action “fails to state a claim” or that the action 

be dismissed under § 1915(e)(2)(B)(ii). The Lema court did both. This 

7 Insofar as the majority proposes to adopt Byrd’s test, I agree that we should 

do so.
12 No. 20-1644

is enough to render the dismissal a strike. 

*** 

I would affirm the district court’s order insofar as it held that 

the Lema dismissal counted as a PLRA strike. I respectfully dissent

from the majority’s holding to the contrary.