The federal Prison Litigation Reform Act (PLRA) bars a prisoner from being able to file a lawsuit without first paying filing fees if the prisoner has “three strikes”—that is, has had three or more prior suits dismissed because they were frivolous, malicious, or failed to state a claim. 28 U.S.C. § 1915(g). The issue here is whether the dismissal had to be with prejudice, or whether a dismissal without prejudice counts, too. It does, says a unanimous Court.
This case begins, and pretty much ends, with the text of Section 1915(g). Under that provision, a prisoner accrues a strike for any action “dismissed on the ground that it … fails to state a claim on which relief may be granted.” That broad language covers all such dismissals: It applies to those issued both with and without prejudice to plaintiff’s ability to reassert his claim in a later action.4 A strike-call under Section 1915(g) thus hinges exclusively on the basis for the dismissal, regardless of the decision’s prejudicial effect. To reach the opposite result—counting prejudicial orders alone as strikes—we would have to read the simple word dismissed in Section 1915(g) as “dismissed with prejudice.” But this Tour may not narrow a provision’s reach by inserting words Congress chose to omit….
4 Note, however, that the provision does not apply when a court gives a plaintiff leave to amend his complaint. Courts often that that path if there is a chance that amendment can cure a deficient complaint….
Footnote 4 (the only part of the opinion Thomas declined to join) provides an escape hatch—at least for those pro se prisoner litigants canny enough to ask for leave to amend.
The Wisconsin PLRA has similar provisions to those at issue here, §§ 801.02(7)(d) and 802.05(4)(b). While our PLRA is “inspired” by the federal version, our version is broader, so federal decisions about the federal version don’t control the meaning of our version. State ex rel. Cramer v. Court of Appeals, 2000 WI 86, ¶¶38-49, 236 Wis. 2d 473, 613 N.W.2d 39. Nonetheless, given the similarities in the statutory language and policy, not to mention our broader PLRA, it is all but certain Wisconsin courts would follow suit on this issue.
And that escape hatch in footnote 4? It’s available here, too, though a court must “screen” the proposed amended pleading under § 802.05(4)(b) before granting the prisoner leave to amend, Lindell v. Litscher, 2005 WI App 39, 280 Wis. 2d 159, 694 N.W.2d 396, so seeking leave to amend won’t guarantee the inmate avoids a strike.