The NCSL Blog


By Lisa Soronen

The U.S. Supreme Court ruled unanimously in Lomax v. Ortiz that a dismissal without prejudice for failure to state a claim counts as a strike under the Prison Litigation Reform Act (PLRA). The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing for this result.

Supreme Court buildingThe 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[ed] to state a claim upon which relief may be granted.”

Arthur Lomax’s current lawsuit challenges his expulsion from a prison sex-offender treatment program. He previously brought three unsuccessful lawsuits against corrections officers, prosecutors, and judges. Lomax claims that two of those dismissals shouldn’t be counted as strikes as they were without prejudice, meaning he could file a later suit on the same claim.

Justice Elise Kagan, writing for the court, disagreed with Lomax stating this case “begins, and pretty much ends, with the text” of the statute; the broad language of the statute covers all dismissals. “To reach the opposite result—counting prejudicial orders alone as strikes—we would have to read the simple word ‘dismissed’ in [the PLRA] as ‘dismissed with prejudice.’” 

Kagan also noted that the PLRA uses the dismissal for failure to state a claim language in three other provisions. Everyone agrees that under those provisions courts could dismiss suits without prejudice. “So reading the PLRA’s three-strikes rule to apply only to dismissals with prejudice would introduce inconsistencies into the statute. The identical phrase would then bear different meanings in provisions almost next-door to each other.” 

Most prisoners reside in either state prisons or local jails; state and local governments pay the costs of defending meritless prisoner cases. The SLLC amicus brief argued that a dismissal without prejudice should count as a strike because the goal of the PLRA is “fewer and better prisoner suits,” and it has largely accomplished this goal.

While Lomax argued dismissals without prejudice aren’t similar to dismissals of frivolous and malicious lawsuits, which also count as strikes, the court noted that the purpose of the PLRA was to “cabin not only abusive but also simply meritless prisoner suits.” 

Justice Clarence Thomas joined all of the opinion except a footnote stating that no strike accrues when a court allows an inmate to amend his or her complaint. 

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.