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Supreme Court Affirms Lower-Court Dismissal of Colorado Prisoner In Forma Pauperis Actions

In the case of Lomax v. Ortiz-Marquez, et al., the Supreme Court of the United States (SCOTUS) in a 9-0 decision on June 8, 2020, affirmed the Tenth Circuit opinion dismissal of Arthur Lomax’ lawsuit as barred under what has been termed the “three-strikes” rule, rejecting his argument that dismissals that were “without prejudice” to refiling did not count as “strikes.”

Justice Elena Kagan, writing for the high court, noted, “Petitioner Arthur Lomax is an inmate in a Colorado prison. He filed this suit against respondent prison officials to challenge his expulsion from the facility’s sex-offender treatment program. As is common in prison litigation, he also moved for IFP status to allow his suit to go forward before he pays the $400 filing fee.”

Lomax argued that Section 1915(g), which defines the “three-strikes” rule, did not bar his free filing as at least two of his three previous lawsuits were dismissed “without prejudice.” However, Justice Kagan stated that the provision does not make that distinction if it is “dismissed on the ground that it … fails to state a claim upon which relief may be granted.”

Kagan also rejected the argument that Federal Rule 41b dismissals that were without prejudice should not be counted as “strikes,” stating that, “Its very existence is a form of proof that the language used in Section 1915(g) covers dismissals both with and without prejudice.”

Related legal case

Lomax v. Ortiz-Marquez