20-3883 Burns v. Schell
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 31st day of January, two thousand twenty-three. 4 5 PRESENT: 6 PIERRE N. LEVAL, 7 REENA RAGGI, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 George Burns, 13 14 Plaintiff-Appellant, 15 16 v. No. 20-3883 17 18 Amy Schell, LMSW, 19 20 Defendant-Appellee. 21 _____________________________________ 22 23 FOR PLAINTIFF-APPELLANT: RAYMOND P. TOLENTINO, Mahrah M. 24 Taufique, Kaplan Hecker & Fink LLP, 25 Washington, DC. 26 27 28 FOR AMICI CURIAE FORMER KEVIN KING, Jacob Crump, Covington & 29 U.S. SENATOR JON KYL AND Burling LLP, Washington, DC. 30 COURT-APPOINTED COUNSEL 31 KEVIN KING: 32 1 Appeal from an order of the United States District Court for the Southern District of New
2 York (Louis L. Stanton, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the order of the district court entered on October 28, 2020 is AFFIRMED.
5 This case asks us to decide whether appellant George Burns is barred from proceeding in
6 forma pauperis under the “three strikes provision” of the Prison Litigation Reform Act (“PLRA”),
7 28 U.S.C. § 1915(g). The district court ruled that he was barred from so proceeding due to
8 dismissals for failure to state a claim—“strikes” under the PLRA—in three previous cases. He
9 then brought this appeal from that ruling. Burns does not contest that one of the dismissals
10 qualifies as a strike. We hold that because the two other dismissals, those at issue in this appeal,
11 were explicitly dismissed for failure to state a claim, Burns has reached his three strikes and is thus
12 barred from proceeding in forma pauperis under the PLRA. We assume the parties’ familiarity
13 with the underlying facts, the procedural history, and the issues on appeal, which we reference
14 only as necessary to explain our decision.
15 I. Standard of Review
16 This Court reviews de novo a district court’s denial of in forma pauperis status and order
17 barring a plaintiff from filing further actions in forma pauperis pursuant to 28 U.S.C. § 1915. See
18 Polanco v. Hopkins, 510 F.3d 152, 155 (2d Cir. 2007).
19 II. Discussion
20 Section 1915(g) provides:
21 In no event shall a prisoner bring a civil action or appeal a judgment 22 in a civil action or proceeding under this section if the prisoner has, 23 on 3 or more prior occasions, while incarcerated or detained in any
2 1 facility, brought an action or appeal in a court of the United States 2 that was dismissed on the grounds that it is frivolous, malicious, or 3 fails to state a claim upon which relief may be granted, unless the 4 prisoner is under imminent danger of serious physical injury.
5 28 U.S.C. § 1915(g). Courts applying the PLRA must therefore assess whether an in forma
6 pauperis applicant “brought [a civil] action or appeal in a court of the United States that was
7 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief
8 may be granted.” 28 U.S.C. § 1915(g) (emphasis added); see also Escalera v. Samaritan Vill., 938
9 F.3d 380, 383 (2d Cir. 2019) (“When evaluating a dismissal at summary judgment, courts have
10 held that an inquiry into the basis of the district court’s dismissal is required to determine whether
11 the dismissing court deemed the action frivolous, malicious, or failing to state a claim.” (emphasis
12 added)); Jones v. Smith, 720 F.3d 142, 146 (2d Cir. 2013) (“[T]he term ‘action or appeal’ in the
13 second half of the provision is simply an abbreviated reference to the term ‘civil action or appeal
14 . . . in a civil action’ mentioned earlier in the same sentence.”).
15 Burns offers two principal arguments as to why the two dismissals—both cases brought as
16 § 1361 mandamus petitions—should not be considered strikes under the PLRA.
17 First, Burns claims that these two cases were not civil actions within the meaning of §
18 1915(g). We disagree. “[T]he PLRA requirements apply to those extraordinary writs that seek
19 relief analogous to civil complaints under 42 U.S.C. § 1983.” In re Nagy, 89 F.3d 115, 116 (2d
20 Cir. 1996). The mandamus petitions Burns filed sought relief comparable to that available through
21 a civil complaint and are therefore “civil action[s]” under the PLRA. One sought an order directing
22 a private grocery store to divulge the contents of a video showing an alleged assault by police
23 officers on an unrelated third party, and the other sought an order directing the United States
3 1 Department of Health and Human Services (“HHS”) to investigate alleged violations of the Health
2 Insurance Portability and Accountability Act of 1996. We see no error in the district court’s
3 conclusion that each sought relief analogous to civil complaints under § 1983.
4 Second, Burns argues that the dismissals were not strikes because, no matter the stated
5 ground for the dismissing courts’ rulings, the two cases were actually dismissed for failure to allege
6 facts coming within the jurisdictional requirements for mandamus petitions under § 1361, such
7 that the cases were not adjudications on the merits and could not be considered dismissals for
8 failure to state a claim. While dismissals for lack of subject matter jurisdiction cannot count as
9 strikes under § 1915(g), see Tafari v. Hues, 473 F.3d 440, 442 (2d Cir. 2007) (“A dismissal triggers
10 § 1915(g) only if” based upon an enumerated ground), there is some uncertainty regarding whether
11 and to what extent § 1361 requirements are jurisdictional rather than merits-based. We need not
12 pursue that point because Burns’s argument ignores the focus of § 1915(g), which is on the reason
13 given by the court that dismissed the claim rather than on the subsequently evaluating court’s
14 analysis of the true reason for dismissal. If the dismissing court explains that dismissal was on the
15 grounds that it was “frivolous, malicious, or fails to state a claim,” 28 U.S.C. § 1915
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20-3883 Burns v. Schell
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 31st day of January, two thousand twenty-three. 4 5 PRESENT: 6 PIERRE N. LEVAL, 7 REENA RAGGI, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 George Burns, 13 14 Plaintiff-Appellant, 15 16 v. No. 20-3883 17 18 Amy Schell, LMSW, 19 20 Defendant-Appellee. 21 _____________________________________ 22 23 FOR PLAINTIFF-APPELLANT: RAYMOND P. TOLENTINO, Mahrah M. 24 Taufique, Kaplan Hecker & Fink LLP, 25 Washington, DC. 26 27 28 FOR AMICI CURIAE FORMER KEVIN KING, Jacob Crump, Covington & 29 U.S. SENATOR JON KYL AND Burling LLP, Washington, DC. 30 COURT-APPOINTED COUNSEL 31 KEVIN KING: 32 1 Appeal from an order of the United States District Court for the Southern District of New
2 York (Louis L. Stanton, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the order of the district court entered on October 28, 2020 is AFFIRMED.
5 This case asks us to decide whether appellant George Burns is barred from proceeding in
6 forma pauperis under the “three strikes provision” of the Prison Litigation Reform Act (“PLRA”),
7 28 U.S.C. § 1915(g). The district court ruled that he was barred from so proceeding due to
8 dismissals for failure to state a claim—“strikes” under the PLRA—in three previous cases. He
9 then brought this appeal from that ruling. Burns does not contest that one of the dismissals
10 qualifies as a strike. We hold that because the two other dismissals, those at issue in this appeal,
11 were explicitly dismissed for failure to state a claim, Burns has reached his three strikes and is thus
12 barred from proceeding in forma pauperis under the PLRA. We assume the parties’ familiarity
13 with the underlying facts, the procedural history, and the issues on appeal, which we reference
14 only as necessary to explain our decision.
15 I. Standard of Review
16 This Court reviews de novo a district court’s denial of in forma pauperis status and order
17 barring a plaintiff from filing further actions in forma pauperis pursuant to 28 U.S.C. § 1915. See
18 Polanco v. Hopkins, 510 F.3d 152, 155 (2d Cir. 2007).
19 II. Discussion
20 Section 1915(g) provides:
21 In no event shall a prisoner bring a civil action or appeal a judgment 22 in a civil action or proceeding under this section if the prisoner has, 23 on 3 or more prior occasions, while incarcerated or detained in any
2 1 facility, brought an action or appeal in a court of the United States 2 that was dismissed on the grounds that it is frivolous, malicious, or 3 fails to state a claim upon which relief may be granted, unless the 4 prisoner is under imminent danger of serious physical injury.
5 28 U.S.C. § 1915(g). Courts applying the PLRA must therefore assess whether an in forma
6 pauperis applicant “brought [a civil] action or appeal in a court of the United States that was
7 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief
8 may be granted.” 28 U.S.C. § 1915(g) (emphasis added); see also Escalera v. Samaritan Vill., 938
9 F.3d 380, 383 (2d Cir. 2019) (“When evaluating a dismissal at summary judgment, courts have
10 held that an inquiry into the basis of the district court’s dismissal is required to determine whether
11 the dismissing court deemed the action frivolous, malicious, or failing to state a claim.” (emphasis
12 added)); Jones v. Smith, 720 F.3d 142, 146 (2d Cir. 2013) (“[T]he term ‘action or appeal’ in the
13 second half of the provision is simply an abbreviated reference to the term ‘civil action or appeal
14 . . . in a civil action’ mentioned earlier in the same sentence.”).
15 Burns offers two principal arguments as to why the two dismissals—both cases brought as
16 § 1361 mandamus petitions—should not be considered strikes under the PLRA.
17 First, Burns claims that these two cases were not civil actions within the meaning of §
18 1915(g). We disagree. “[T]he PLRA requirements apply to those extraordinary writs that seek
19 relief analogous to civil complaints under 42 U.S.C. § 1983.” In re Nagy, 89 F.3d 115, 116 (2d
20 Cir. 1996). The mandamus petitions Burns filed sought relief comparable to that available through
21 a civil complaint and are therefore “civil action[s]” under the PLRA. One sought an order directing
22 a private grocery store to divulge the contents of a video showing an alleged assault by police
23 officers on an unrelated third party, and the other sought an order directing the United States
3 1 Department of Health and Human Services (“HHS”) to investigate alleged violations of the Health
2 Insurance Portability and Accountability Act of 1996. We see no error in the district court’s
3 conclusion that each sought relief analogous to civil complaints under § 1983.
4 Second, Burns argues that the dismissals were not strikes because, no matter the stated
5 ground for the dismissing courts’ rulings, the two cases were actually dismissed for failure to allege
6 facts coming within the jurisdictional requirements for mandamus petitions under § 1361, such
7 that the cases were not adjudications on the merits and could not be considered dismissals for
8 failure to state a claim. While dismissals for lack of subject matter jurisdiction cannot count as
9 strikes under § 1915(g), see Tafari v. Hues, 473 F.3d 440, 442 (2d Cir. 2007) (“A dismissal triggers
10 § 1915(g) only if” based upon an enumerated ground), there is some uncertainty regarding whether
11 and to what extent § 1361 requirements are jurisdictional rather than merits-based. We need not
12 pursue that point because Burns’s argument ignores the focus of § 1915(g), which is on the reason
13 given by the court that dismissed the claim rather than on the subsequently evaluating court’s
14 analysis of the true reason for dismissal. If the dismissing court explains that dismissal was on the
15 grounds that it was “frivolous, malicious, or fails to state a claim,” 28 U.S.C. § 1915(g), that makes
16 the dismissal a strike, even if a subsequent court, in seeking to determine whether there have been
17 three strikes, determines the dismissal should have been characterized as a dismissal for lack of
18 jurisdiction.
19 In both cases at issue here, the courts that dismissed Burns’s mandamus petitions explicitly
20 ruled that the dismissals were for failure to state a claim. See Order of Dismissal at 3, ECF No. 7,
21 Burns v. Foodtown Express of Yonkers LLC, No. 1:18-CV-9802 (LLS) (S.D.N.Y. Dec. 27, 2018)
22 (dismissing “pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)” Burns’s petition directed at a private
4 1 grocery store); Order of Dismissal at 2, 4, ECF No. 6, Burns v. Dep’t of Health & Human Servs.,
2 No: 1:19-CV-2246 (CM) (S.D.N.Y. Oct. 4, 2019) (dismissing Burns’s petition directed at HHS
3 “for failure to state a claim on which relief may be granted” and citing 28 U.S.C. §
4 1915(e)(2)(B)(ii)); see also 28 U.S.C. § 1915(e)(2)(B)(ii) (“Notwithstanding any filing fee, or any
5 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court
6 determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted[.]”).
7 Burns would have us second-guess the district court’s determinations, but doing so would
8 require us to ignore the lessons of Harris v. City of New York, 607 F.3d 18 (2d Cir. 2010). In
9 Harris, this Court rejected the proposition that district courts are required to “review actual orders
10 of dismissal in determining a prisoner-litigant[’s] prior strikes.” Id. at 23. The Harris court
11 explained that “[t]he district court may rely on the relevant docket sheets if they indicate with
12 sufficient clarity that the prior suits were dismissed on the grounds that they were frivolous,
13 malicious, or failed to state a claim upon which relief may be granted.” Id. at 23–24. In the case
14 before us, the district court surveyed the reasons for dismissing both cases and identified clear
15 language demonstrating that they were dismissed for failure to state a claim. That is sufficient to
16 settle the matter here.
17 For the foregoing reasons, we AFFIRM the order of the district court.
18 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk of Court