En Banc Fourth Circuit Proves Vexing to Vexatious Prisoner Litigants

By Jonathan Biran

It’s not every day that the Fourth Circuit publishes an opinion denying a motion for reconsideration of a denial to proceed in forma pauperis on appeal – let alone that the Fourth Circuit does so en banc. That is what Fourth Circuit did on October 21, 2013, in Blakely v. Wards.

Currently an inmate in the South Carolina correctional system, the litigious Mr. Blakely filed an action under 42 U.S.C. § 1983 against South Carolina correctional officials in 2010. After the district court granted summary judgment for the defendants, Blakely took an appeal to the Fourth Circuit. To avoid needing to pay the $455 in filing fees up front,[1] Blakely applied to proceed in forma pauperis (“IFP”) on appeal. The Court denied Blakely’s application to proceed IFP, and Blakely moved for reconsideration. The Court then assigned Blakely counsel (from the Georgetown Law Center Appellate Litigation Clinic) and directed the parties to brief whether certain of Blakely’s prior lawsuits constitute strikes under the “three strikes” provision of the Prisoner Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g). That portion of section 1915 provides that a prisoner may not proceed IFP in a civil action in district court or on appeal “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) (emphasis added).

Blakely has had four prior federal court cases terminated at summary judgment expressly as frivolous, malicious, or failing to state a claim. Thus, if a grant of summary judgment in such a case amounts to having had the case “dismissed,” then Blakely would have the necessary three strikes under the PLRA, and would not be eligible to proceed IFP in his Fourth Circuit appeal or in any other federal civil case (unless he was in imminent danger of serious physical injury).

A panel comprised of Judges Agee, Wynn, and Floyd unanimously affirmed the denial of the motion for reconsideration in a published opinion written by Judge Wynn, see 701 F.3d 995 (4th Cir. 2012). However, the Court subsequently granted Blakely’s petition for rehearing en banc and vacated the panel opinion; rehearing occurred on May 16, 2012, with all active judges participating except for Chief Judge Traxler. (It’s not clear from the docket why the Chief Judge didn’t participate in this case, but I’m told that, back when he was a district judge, Chief Judge Traxler wrote one of the prior orders that was reviewed by the Fourth Circuit in this case.)

Nilam Sanghvi, then a teaching fellow at the Georgetown Appellate Litigation Clinic and now a lecturer on the faculty of the University of Pennsylvania Law School, argued the case on behalf of Blakely. Daniel Settana, of the McKay Firm in Columbia, South Carolina, argued the case for the appellees.

The en banc majority, in an opinion written by Judge Wynn, and joined by Judges Wilkinson, Niemeyer, Shedd, Agee, Keenan, Diaz, and Floyd, held that the termination of a case at summary judgment expressly as frivolous, malicious, or for failure to state a claim does indeed qualify the case as having been “dismissed” within the meaning of section 1915(g). In support of its interpretation of “dismissed” in the statute, the majority cited the Black’s Law Dictionary definition of “dismiss”: “to terminate (an action or claim) without further hearing, esp. before the trial of the issues involved,” Slip Op. at 6-7, and then noted that a summary judgment of course does terminate a case without a trial.

The problem with this definition is that, while all dismissals constitute a termination before trial, not all terminations before trial are necessarily dismissals in the narrower sense customarily used by practitioners.[2] Perhaps aware that the Black’s Law Dictionary definition of “dismissal” would strike many practitioners as ignoring the distinction that we frequently make between Rule 12 terminations and terminations at the summary judgment stage, the majority also cited a few cases in which a summary judgment has been referred to as a dismissal. See Slip Op. at 7-8 (citing, inter alia, Tolbert v. Stevenson, 635 F.3d 646, 654 (4th Cir. 2011)).

But these citations, too, strike me as rather flimsy support; I suspect if one did a survey of district court and appellate court references to cases involving summary judgment, one would find much more often that courts refer to a “grant” of summary judgment or to the “entry of judgment” for the moving party, than to the complaint being “dismissed” at that stage. Nevertheless, although the majority noted that “[t]here is some argument, particularly in the legal academy, that summary judgments should not be called dismissals,” Slip Op. at 8, the majority found no indication that Congress “had any such distinction in mind when it drafted Section 1915(g).” Id. The majority also reasoned that the language of other subsections of section 1915 – read together with section 1915(g) – support its interpretation of “dismissed” as used in section 1915(g). The majority further opined that its interpretation of “dismissed” as used in section 1915(g) is consistent with the legislative intent of the PLRA, i.e., to reduce the number of frivolous prisoner lawsuits that had been flooding federal court.

Judge Motz, joined by Judges King, Davis, Thacker, and Gregory dissented with respect to the majority’s interpretation of “dismissed” in section 1915(g).  To the dissenters, the plain language of section 1915(g) “makes clear that cases resolved by a procedure other than dismissal – like summary judgment, as in this case – are not strikes.” Slip Op. at 43. “Indeed,” Judge Motz continued, “that a case resolved on summary judgment is not ‘dismissed’ and thus does not constitute a strike for § 1915(g) purposes is so obvious that at least three circuits, and numerous district courts, simply have assumed as much in unpublished opinions.” Id. at 44 (citing cases from the Fifth, Sixth, and Eighth Circuits). Rejecting the majority’s plain language argument, Judge Motz referred to a “lesson learned in the first year of law school: dismissal and summary judgment differ in important respects. Both can terminate an action, but a case resolved by summary judgment is not ‘dismissed.’” Id. at 45.

In addition, Judge Motz reasoned that “dismissed” as used in section 1915(g) – in tandem with “fails to state a claim upon which relief may be granted” – has a well-established legal meaning that “obviously differs from the equally well-established legal meaning of summary judgment.” Id. at 45-46. Judge Motz also invoked the purpose of the PLRA – to lessen the burden imposed on federal courts by abusive prisoner litigation – actually as a reason to interpret “dismissed” as not including cases decided at summary judgment. Her somewhat counterintuitive argument on this point was that the majority’s interpretation would force courts to do extra work to determine whether a summary judgment had been granted on the basis of frivolousness, maliciousness, or failure to state a claim when such criteria are not required for a grant of summary judgment.

But it seems quite plausible to me that Congress would want a court to invest some additional time on the front end to determine whether a prisoner is subject to the three-strikes rule if it means that the inquiry may reveal three qualifying strikes and therefore that the prisoner likely will not be able to come up with the money to go forward with the case. The majority also took issue with this point in Judge Motz’s dissent, stating that it would not be that much extra work for a court to look at the face of a summary judgment for an indication that the district court had found the case to be frivolous, malicious, or had failed to state a claim upon which relief may be granted. Slip Op. at 20-21.

Judge Motz also said that limiting strikes to actual dismissals would mean that “a reviewing court would not need to engage in a searching inquiry of the district court’s decision to decide the issues of frivolity or maliciousness for itself.” Id. at 51. But it seems to me that, in the context of a dismissal that was not granted under Rule 12(b)(6) for failure to state a claim, an appellate court would still need to look to the district court’s order to see whether the court referred to the frivolousness or maliciousness of the action. Judge Shedd made a similar point at the oral argument.

Another problem with Judge Motz’s analysis stems from the fact that section 1915(g) refers to strikes arising from both “an action” and an “appeal in a court of the United States.” This raises the question of how to deal with an appellate disposition that finds an appeal to have been frivolous or malicious but is technically not a dismissal of an appeal. Consider a hypothetical case that is dismissed in the district court under Rule 12(b)(2) for lack of personal jurisdiction. The district court, however, does not make a finding that the case was frivolous or malicious. The prisoner then appeals the dismissal to the Court of Appeals. The prisoner now having been put on notice that personal jurisdiction is lacking, the Court of Appeals affirms the district court’s decision, but states in the body of its opinion that the appeal is frivolous. Does the appellate affirmance with a reference to frivolousness qualify as a section 1915(g) strike? The majority in Blakely cited favorably to cases that indicate the answer to that question is yes. See Slip Op. at 16 (citing, inter alia, Thompson v. DEA, 492 F.3d 428 (D.C. Cir. 2007), for the proposition that an appellate affirmance that expressly states the appeal itself was frivolous or malicious, etc. should be regarded as a “constructive dismissal” and, therefore, as a strike). If an appellate affirmance – which is certainly different than an appellate dismissal – can be considered a “constructive dismissal” and therefore a section 1915(g) strike, it is difficult to see why a grant of summary judgment should not be treated in the same manner.

Both Judge Wynn and Judge Motz scored points in their argument regarding the meaning of “dismissed” in section 1915(g), which highlights the ambiguity of section 1915(g). If this were a criminal statute, a prisoner might get somewhere by invoking the rule of lenity. But, at least in the Fourth Circuit, it will now be more difficult for prisoners with prior qualifying summary judgments to have the merits of their lawsuits heard. The majority doesn’t think this will be a big problem, because most of the time frivolousness, maliciousness, and failure to state a claim are not addressed at summary judgment. Slip Op. at 13. But this begs the question of how it is that Blakely had four such summary judgment findings of frivolousness. I could probably sit down and draft a complaint that would be pled well enough to get past a motion to dismiss but, after discovery had concluded, would be shown to be baseless. In my hypothetical case, a district judge granting summary judgment against me might simply find that there was no genuine issue of material fact and not bother to slam me with a finding that my complaint was frivolous or malicious. It would be interesting to analyze whether magistrate and district judges make findings of frivolousness or maliciousness at summary judgment more frequently in prisoner cases than in other civil cases. I suspect that they do.

Judge Motz is certainly concerned that the Fourth Circuit’s rule will mean that some potential meritorious prisoner cases won’t see the light of day. See Slip Op. at 58 (Motz, J., dissenting) (citing Gideon v. Wainright and noting that “[p]aupers have been an important – and valued – part of the [Supreme] Court’s docket … and remain so”; “Regrettably, my colleagues disregard this value. By denying Blakely leave to proceed IFP before even glancing at the merits of his current claim, the majority of the court improperly denies an indigent access to justice, and sets a dangerous course for the future.”) (internal quotation marks and citation omitted; alteration by the Court).

An interesting side battle was waged in Blakely between Judges Wilkinson, Niemeyer, Keenan, Diaz, and Duncan, and to a lesser extent Judge Gregory on one side, and Judges Motz, King, Davis, and Thacker on the other. In his concurring opinion, after noting his full agreement with the majority opinion, Judge Wilkinson (joined by Judges Niemeyer, Keenan, and Diaz) said that another basis upon which it was proper to deny Blakely’s IFP application was grounded in section 1915(a), which predates the PLRA and which provides in relevant part: “any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor.” Judge Wilkinson explained that, regardless of whether Blakely’s IFP application “must be denied by virtue of the mandatory three-strikes rule prescribed in § 1915(g), we possess ample discretion to deny his request under the residual authority conferred upon courts by § 1915(a).” Slip Op. at 26 (emphasis in original).

Recognizing the thorniness of the statutory interpretation issue presented by section 1915(g), Judge Wilkinson said that denying the IFP application on the basis of the discretionary authority contained in section 1915(a) “cuts the Gordian knot — and in doing so, protects the federal courts from the most abusive litigants.” Slip Op. at 26; see also id. at 27 (noting that “[a]s demonstrated by the differing views of my colleagues in this case, reasonable people can disagree on the question of whether Congress intended that the summary judgments issued against Mr. Blakely should count as strikes under 28 U.S.C. § 1915(g)”). Judge Wilkinson views section 1915 as establishing a two-step process to determine whether a prisoner’s IFP application should be denied as a consequence of prior litigation conduct. The first inquiry is whether the application must be denied under the three-strikes provision. If the prisoner does not have three qualifying strikes, then the court may proceed to the second inquiry, which is a discretionary determination of whether the court should deny IFP status – and one such reason to deny IFP status would be the prisoner’s history of abusive litigation. In support of his reading of section 1915(a), Judge Wilkinson noted that when Congress amended section 1915 in the PLRA to add the three-strikes provision as part of section 1915(g), it left untouched the word “may” in section 1915(a), implicitly ratifying the Supreme Court’s interpretation of section 1915(a) in In re McDonald, 489 U.S. 170, 184 (1989), as providing courts with discretion to deny IFP status “in the interest of justice.” Later in his concurrence, Judge Wilkinson recounted Blakely’s history of abusive litigation, concluding that the number, frequency, disposition, and content of his previous filings all cut against his IFP application. Slip Op.at 30-35.

Although only six judges (Wilkinson, Niemeyer, Keenan, Diaz, Duncan, and Gregory (to a lesser extent)) signed on to the notion that courts retain discretionary authority to decline IFP applications separate and apart from the three-strikes provision, Judge Motz spent the second half of her dissenting opinion trying to debunk Judge Wilkinson’s concurrence. Her position was largely based on the canon of statutory construction that the specific governs the general. See Slip Op. at 54. That is, “[n]early half a century after the general grant of discretionary authority in § 1915(a)(1) had been on the books, and more than a century after its predecessor had, Congress established a more specific scheme for limiting prisoners’ abuse of the IFP system: the three-strikes rule of § 1915(g). “ Slip Op. at 53 (emphasis in original). Therefore, according to Judge Motz, Congress intended section 1915(g) to displace section 1915(a). This line of analysis seems less persuasive than Judge Motz’s analysis regarding the meaning of “dismissed” in section 1915(g). Judge Motz is stuck with the fact that, when Congress added the three-strikes provision to section 1915 via the PLRA, it left section 1915(a) intact. It is difficult to imagine that, if the Supreme Court were to grant certiorari in this case, the Court would conclude that Congress intended section 1915(g) to render section 1915(a) a nullity. Had Congress meant there no longer to be a discretionary component to review of IFP applications, Congress presumably would have removed section 1915(a) altogether.

Judge Duncan concurred in the judgment, joining neither Judge Wynn’s nor Judge Wilkinson’s opinion. She agreed with Judge Motz that a strike under section 1915(g) should be limited to actions “that are in fact dismissed,” using “dismissed” as “a term of art with a specific legal provenance.” Slip Op. at 40 (Duncan, J., concurring). However, she agreed with that portion of Judge Wilkinson’s concurring opinion that would have affirmed on the basis of the Court’s discretionary authority to deny IFP status under section 1915(a), concluding that sections 1915(a) and (g) “in no way conflict.” Id.

Judge Gregory wrote separately to explain that, while he agreed with Judge Motz that a grant of summary judgment does not qualify as a case having been “dismissed,” he disagreed with Judge Motz’s analysis concerning section 1915(a). Judge Gregory opined that courts do have some limited discretion to deny IFP status. Unlike Judge Duncan, however, Judge Gregory did not concur in the judgment in this case because he would have held that the Court lacked discretion to deny IFP status to Blakely.  While Blakely was a prolific filer, there was (according to Judge Gregory in contrast to Judge Wilkinson) insufficient evidence that Blakely’s past cases were abusive.

A couple of final illustrations that show the problem here ultimately may be with Congress’s drafting of section 1915, rather than with the analysis of any of the Fourth Circuit judges: It is telling that Judge Wilkinson and Judge Motz both criticized the other’s opinion using very similar turns of phrase. Compare Slip Op. at 35-36 (Wilkinson, J., concurring) (“The statute the dissent wishes Congress had written would have been easy enough to draft, but the limiting reference to subsection (g) is, alas, nowhere to be found”) with id. at 47 (Motz, J., dissenting) (“To be sure, if Congress had wanted § 1915(g) to cover more than actual dismissals, it could have said so. The fact that it did not speaks volumes…”). And compare id. at 36 (Wilkinson, J., concurring) (“The dissent likewise overlooks the basic structure of the statute. It reads § 1915(g) to completely swallow up the separate provision in § 1915(a)(1)”) with id. at 57 (Motz, J., dissenting) (criticizing Judge Wilkinson’s concurrence for “reading § 1915(a)(1) to swallow § 1915(g)”).

At the oral argument, Judge Wynn – who had written the panel opinion going against Blakely – expressed surprise and complimented that Blakely’s counsel for having been able to get the case to an en banc rehearing. It is interesting to note the breakdown of the Obama appointees to the Fourth Circuit in this case. Although it seems beyond dispute that the six Obama appointees (starting with Judge Davis in 2009) have made the Court more liberal, the decision in this case suggests that when it comes to prisoner litigation, the Obama appointees are not going to provide a reliable bloc in favor of increasing access to federal courts to prisoners. Although Judge Wynn has generally established himself as one of the more liberal members of the Fourth Circuit since President Obama appointed him to the Court in 2010, he parted company in this case with his fellow Obama appointees, Judges Davis and Thacker (and other more senior judges considered generally to be liberals, i.e., Judges Motz and King). Meanwhile, the three other Obama appointees (Judges Keenan, Diaz, and Floyd) all signed onto the majority opinion, and two (Keenan and Diaz) also signed onto Judge Wilkinson’s concurrence.

Judge Wynn will probably be even more surprised if the Supreme Court grants certiorari in this case. One reason I think the Supreme Court probably won’t grant cert in this case is that the Fourth Circuit had not asked the parties to brief the question about the discretionary provision, section 1915(a). That perhaps is also why some or all of four judges in the majority (Agee, Shedd, Wynn, and Floyd) didn’t sign onto Judge Wilkinson’s concurrence. While this case may not be an attractive vehicle for the Supreme Court, it seems likely to me that, at some point, a case in a better procedural posture will present the Supreme Court with an opportunity to interpret section 1915 as a whole, and that the Court will do so.