The NCSL Blog


By Lisa Soronen

The State and Local Legal Center’s (SLLC) Supreme Court amicus brief in Lomax v. Ortiz-Marquez argues that a dismissal without prejudice for failure to state a claim counts as a strike under the Prison Litigation Reform Act (PLRA).

US Supreme CourtLess technically, the SLLC brief, which was not joined by NCSL, is aimed at decreasing meritless prisoner litigation.

Arthur Lomax filed three lawsuits alleging a variety of constitutional violations stemming from his expulsion from the Sex Offender Treatment and Monitoring Program at Centennial Correctional Facility.

The federal district court dismissed the first and second lawsuits as barred by Heck v. Humphrey, which holds that a litigant cannot bring a lawsuit challenging his or her conviction's legitimacy until that conviction has been dismissed. The third lawsuit was dismissed for a failure to state a claim. The first two cases were dismissed without prejudice (meaning Lomax is not permanently barred from bringing them again).

The PLRA contains a three-strikes rule disallowing an inmate who can’t pay filing fees upfront from filing a fourth lawsuit when he or she has filed three previous lawsuits which were dismissed on the grounds that they were “frivolous, malicious, or fail to state a claim upon which relief may be granted.”

Lomax argues he should be able to bring another lawsuit without paying filing fees upfront regardless of the three-strikes rule because two of his previous lawsuits were dismissed without prejudice. 

The 10th Circuit ruled against Lomax, relying on “long standing precedent” that “the fact that two of the dismissals were without prejudice is immaterial.”

Most prisoners reside in either state prisons or local jails; state and local governments pay the costs of defending meritless prisoner cases. Lomax argues that the problem with ruling against him is that if a prisoner files an otherwise meritorious lawsuit with a curable problem, which is dismissed without prejudice, and this dismissal leads to a third strike, another meritorious claim is barred.

The SLLC amicus brief explains Lomax’s concerns are unfounded. First, “without-prejudice dismissals often occur when district courts throw up their hands at unintelligible . . . prisoner complaints, which is a common occurrence, to say the least.”

Second, as happened in this case, courts routinely dismiss prisoner suits without prejudice on the basis of Heck v. Humphrey, because a prisoner’s conviction has yet to be dismissed. In fact, most Courts of Appeals require Heck dismissals to be entered without prejudice.

Misha Tseytlin, Sean T.H. Dutton, Elizabeth Holt Andrews, Hillary A. Lehmann, Katharine Lane Malone, Michael K. Cassata and George Laiolo of Troutman Sanders wrote the SLLC amicus brief in this case which the following organizations joined: Council of State Governments, National Association of Counties, National League of Cities, US Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, Government Finance Officers Association and National Sheriffs Association. 

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.