Lomax v. Ortiz-Marquez

Does a dismissal without prejudice for failure to state a claim count as a strike under 28 U.S.C. §1915(g)?

Petitioner is incarcerated and filed a pro se prisoner’s complaint and a motion to proceed in forma pauperis pursuant to 28 U.S.C. §1915. Petitioner had previously filed three actions that were dismissed without prejudice by the district court for failure to state a claim. The district court denied Petitioner’s motion to proceed in forma pauperis because it concluded that the three previous actions counted as strikes under §1915(g). Petitioner appealed to the United States Court of Appeals for the Tenth Circuit, which affirmed by relying on its previous holdings that dismissals without prejudice count as strikes. Petitioner argues that the types of dismissals contemplated by the statute were those that constituted an adjudication on the merits and therefore there would only be two strikes against Petitioner. Petitioner also notes that the United States Court of Appeals for the Fourth Circuit has held that there is no adjudication on the merits for dismissals without prejudice for failure to state a claim. Petitioner therefore argues that the Tenth Circuit’s interpretation of §1915(g) is contrary to Congressional intent. The U.S. Supreme Court granted limited certiorari to address whether dismissal without prejudice for failure to state a claim as a strike under §1915(g).