Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Third Circuit Says Mixed Dismissal of Civil Rights Action Not a Strike Under PLRA

by David M. Reutter

In a ruling on September 27, 2021, the U.S. Court of Appeals for the Third Circuit held that a “mixed dismissal” of a Pennsylvania prisoner’s civil rights action does not count as a strike under the Prison Litigation Reform Act of 1996 that would prevent him from proceeding in forma pauperis under 28 U.S.C. § 1915.

The Court’s opinion was issued in an appeal brought by prisoner Quintez Talley, who filed suit pro se in U.S. District Court for the Middle District of Pennsylvania in 2019, making various federal and state claims related to alleged violations of a settlement agreement resolving prior lawsuits he filed. The district court dismissed the action upon finding that the federal claims were meritless because, among other reasons, the settlement agreement was never filed on the court’s docket. It declined to exercise jurisdiction on the state law claims and dismissed them without prejudice. Talley appealed.

When he filed, he moved to proceed in forma pauperis. Appellees opposed that motion, arguing Talley had accumulated three “strikes,” so he was barred from doing so. But two of the actions they cited were mixed dismissals, in which a federal court declined to exercise jurisdiction over state law claims.

The Third Circuit then appointed attorneys Jonathan M. Albano of Morgan Lewis & Bocklus in Boston and Andrew M. Buttaro of Dallas as a pair of amicus curiae on behalf of Talley to address “whether a strike accrues where a district court dismisses a prisoner’s federal claims on one or more grounds covered by §1915(g) but declines to exercise supplemental jurisdiction over the prisoner’s state law claims.”

The relevant section provides that a prisoner may not be excused from paying any court fees if he “on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal” in federal court “that was dismissed on the grounds it is frivolous, malicious, or fails to state a claim upon which relief may be granted…”

After the amici weighed in, the Third Circuit concluded that the statute’s plain language “precludes Appellees’ view that a mixed dismissal is a strike” since it “is not a dismissal of the action on one or more of the three enumerated grounds” but rather “a dismissal of a portion of the action on grounds other than the enumerated grounds.”

The Court said a mixed dismissal does not comply with the rule it announced in Byrd v. Shannon, 715 F 3d 117 (3d Cir. 2013), holding that “a strike under §1915(g) will accrue only if the entire action or appeal is . . . dismissed because it is ‘frivolous,’ ‘malicious,’ or ‘fails to state a claim.’” The D.C. Circuit and Ninth Circuit have reached the same conclusion, the Court noted, and the Seventh, Fourth, Fifth, and Second Circuits have confronted similar questions of mixed dismissals and concluded a strike did not occur when any claim is dismissed for reasons other than those stated in §1915(g).

As a result, the Court said Talley “has not struck out” and could not be kept from proceeding in forma pauperis. But it then snatched defeat from the jaws of the prisoner’s victory by affirming the district court’s refusal to grant leave to amend his complaint as well as its dismissal of his lawsuit as meritless. See: Talley v. Wetzel, 15 F.4th 275 (3rd Cir. 2021). 

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Talley v. Wetzel