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Eleventh Circuit Says Florida Prisoner Who Dismissed Complaint Cannot Be Assessed a “Strike” Under PLRA

by Matthew Clarke

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, raises several barriers for prisoner litigants, not least being a “three strikes” provision that prevents indigent prisoners from having court fees waived by filing in forma pauperis if they have also had three prior cases dismissed because they were “frivolous, malicious, or failed to state a claim upon which relief may be granted.”

But what about a prisoner who reads the tea leaves of his case and concludes it’s likely headed for that sort of dismissal – can he get ahead of having a “strike” called by voluntarily dismissing his case first? That’s what Florida prisoner Jason Elliot Smith wanted to do with his suit, until a federal district court cried foul. So he turned to the U.S. Court of Appeals for the Eleventh Circuit, arguing there is nothing in PLRA to stop him.

On May 11, 2023, the Court agreed with him, holding that the federal court for the Northern District of Florida erred when it refused to allow Smith to voluntarily dismiss his suit so that it could enter the dismissal itself and call it a “strike” under PLRA.

Smith filed his pro se suit pursuant to 42 U.S.C. § 1983, making sexual abuse allegations against the pastor of the church he attended as a child three decades earlier. A magistrate judge at the district court granted him permission to proceed in forma pauperis and then recommended that the suit be dismissed for failure to state a claim. Before the district court could consider the recommendation, Smith filed a motion “seeking to voluntarily dismiss the case and to receive a full refund” of his filing fees, as the Eleventh Circuit later recalled.

But the magistrate judge recommended that Smith’s request be denied, reasoning that voluntary dismissals could not be permitted “after an adverse recommendation” like the one the magistrate had just made. Rather, to “further the purposes of the ‘three-strikes’ provision of PLRA,” the magistrate said Smith’s case should be dismissed, and the dismissal should count as a “strike” under PLRA.

The district court then adopted the magistrate judge’s recommendations and dismissed the case, counting it as a strike. Aided by court-appointed counsel from Washington, D.C. attorneys Benjamin Gunning and Devi M. Rao of the Roderick & Solange MacArthur Justice Center, as well as Hannah Nguyen of King & Spalding, LLP, Smith appealed.

Taking up the case, the Eleventh Circuit noted that Federal Rule of Civil Procedure Rule 41(a)(1) “entitles a plaintiff to voluntarily ‘dismiss an action without a court order by filing … a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.’” Furthermore, the notice “is effective immediately upon filing,” as held in Anago Franchising, Inc. v. Shaz, 677 F.3d 1272 (11th Cir. 2012). And “the district court is immediately deprived of jurisdiction over the merits of the case,” as laid out in Absolute Activist Value Master Fund, Ltd. v. Devine, 998 F.3d 1258 (11th Cir. 2021).

The Eleventh Circuit noted that Rule 41 is subject to “any applicable federal statute.” “But ‘courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns,’” the Court added, quoting Jones v. Bock, 549 U.S. 199 (2007). Further, the district court’s reasoning in this case “directly conflicts” with another Eleventh Circuit decision in Daker v. Comm’r, Ga. Dep’t of Corr., 820 F.3d 1278 (11th Cir. 2016), where the Court “refused to count as a ‘strike’ the prisoner’s failure to prosecute an appeal, even though [that] meant that ‘a prisoner can file unlimited frivolous appeals and avoid getting strikes by declining to prosecute the appeals after his petitions to proceed in forma pauperis are denied.’”

The Court could “find no language in the PLRA purporting to limit or condition a plaintiff’s right to voluntarily dismiss an action ‘without a court order’ under Rule 41(a).” So Smith’s motion “was effective immediately upon filing” and “deprived the [district] court of jurisdiction over the case.” Therefore, the district court’s judgment was vacated and the case remanded with instructions for the Clerk of the district court to note the vacatur on the docket sheet and substitute voluntary dismissal for the judgment, “pursuant to Rule 41(a).” See: Smith v. Williams, 67 F.4th 1139 (11th Cir. 2023).  

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Related legal case

Smith v. Williams