Lomax v. Ortiz-Marquez

The three-strikes provision under 28 U.S.C. § 1915, denying prisoners the ability to bring suit without paying a filing fee if three or more prior suits were dismissed, includes all dismissals for failure to state a claim—with or without prejudice.

Petitioner, an inmate, filed a suit against prison officials and sought in forma pauperis (IFP) status to allow the suit to proceed without paying the filing fee.  Due to three previous legal actions resulting in dismissals for failure to state a claim, Petitioner was denied IFP status under the three-strikes rule of 28 U.S.C. §1915 by the District Court.  Petitioner argued that dismissals without prejudice ought not count as strikes.  This argument was rejected by the Tenth Circuit Court of Appeals.  The Supreme Court of the United States affirmed the holdings of the lower courts and held that, whether with prejudice or not, a dismissal based on failure to state a claim is considered a strike.  The Supreme Court reasoned that Congress would have specified that only dismissals with prejudice for failure to state a claim count as strikes, if this had been its intention.  Based on the broad language in the statute, all dismissals are included; the Supreme Court declined to narrow the scope of the provision by inserting words Congress decided to omit.  AFFIRMED.