USCA4 Appeal: 22-7228 Doc: 42 Filed: 09/16/2024 Pg: 1 of 13
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-7228
JONATHAN EUGENE BRUNSON,
Plaintiff-Appellant,
v.
JOSH STEIN; BARRY H. BLOCH; JESSICA B. HELMS; ELIZABETH B. JENKINS; BENJAMIN S. GURLITZ; CHARLTON L. ALLEN; PHILIP A. BADDOUR, III; YOLANDA K. STITH; MYRA L. GRIFFIN; KENNETH L. GOODMAN; JAMES C. GILLEN; TAMMY R. NANCE; CHRISTOPHER C. LOUTIT; BRIAN R. LIEBMAN; AMANDA M. PHILLIPS; KIMBERLEE FARR; BRITTANY A. PUCKETT; EMILY M. BAUCOM,
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:21-CT-3063-FL)
Argued: March 21, 2024 Decided: September 16, 2024
Before NIEMEYER, RICHARDSON, and HEYTENS, Circuit Judges.
Motion denied by published opinion. Judge Richardson wrote the opinion, in which Judges Niemeyer and Heytens joined.
ARGUED: Jennifer Franklin, WILLIAM & MARY LAW SCHOOL, Williamsburg, Virginia, for Appellant. Sripriya Narasimhan, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Jim Davidson, Third Year USCA4 Appeal: 22-7228 Doc: 42 Filed: 09/16/2024 Pg: 2 of 13
Law Student, Vivian Li, Third Year Law Student, Brendan Clark, Third Year Law Student, Supreme Court & Appellate Litigation Clinic, WILLIAM & MARY LAW SCHOOL, Williamsburg, Virginia, for Appellant. Joshua H. Stein, Attorney General, Ryan Y. Park, Solicitor General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
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RICHARDSON, Circuit Judge:
It is sometimes said that a judge’s duty is to “call balls and strikes.” Lomax v. Ortiz-
Marquez, 140 S. Ct. 1721, 1724 (2020). This case actually requires us to do so. The Prison
Litigation Reform Act’s (PLRA) “three-strikes” rule bars prisoners from suing in forma
pauperis if, while incarcerated, they filed three or more federal civil actions or appeals that
were dismissed for frivolity, malice, or failure to state a claim upon which relief may be
granted. 28 U.S.C. § 1915(g). One knuckleball has long divided umpires: whether a
dismissal under Heck v. Humphrey, 512 U.S. 477 (1994), is a PLRA strike. Heck held that
a federal court may not entertain a state prisoner’s 42 U.S.C. § 1983 suit for money
damages if that suit’s success would necessarily undermine the legality of his conviction
or confinement, unless the prisoner has first “invalidated” the legality of his confinement.
Id. at 486–87. Today, we hold that a Heck dismissal is necessarily for failure to state a
claim and thus counts as a PLRA strike.
I. Background
The issue here is a legal one, so few facts are needed. Jonathan Brunson is
imprisoned in North Carolina pursuant to a sexual-abuse conviction. While incarcerated,
Brunson filed this § 1983 action naming the North Carolina Attorney General and
seventeen other state officials as defendants. He sought declaratory relief, injunctive relief,
and compensatory and punitive damages.
In his complaint, Brunson acknowledged that he had previously filed four § 1983
suits that were all dismissed under Heck. Nevertheless, he moved to proceed in forma
pauperis. The district court initially granted Brunson’s request. But it later vacated that
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order after deciding that Brunson was precluded from proceeding in forma pauperis by the
PLRA’s three-strikes rule. In reaching this decision, the court found that Brunson’s prior
dismissals under Heck were for failure to state a claim upon which relief may be granted.
So Brunson prepaid the $402 fee to file suit. Later, for reasons not relevant here, the district
court dismissed his § 1983 complaint.
Brunson timely appealed. He then applied to proceed on appeal without prepaying
fees. In the application, Brunson argued that he does not have any PLRA strikes because
Heck dismissals do not count as strikes under the PLRA. Before resolving this question,
we placed Brunson’s case in abeyance pending another appeal in which this issue might
have been resolved. Pitts v. South Carolina, 65 F.4th 141 (4th Cir. 2023). But that case
ultimately reserved the question. See id. at 148 n.3. So we calendared Brunson’s appeal
for argument on whether he should be permitted to proceed on appeal in forma pauperis.1
II. Discussion
Concerned by the “flood of nonmeritorious” prisoner litigation in federal courts,
Jones v. Bock, 549 U.S. 199, 203 (2007), Congress enacted the PLRA’s three-strikes rule
to “filter out the bad claims filed by prisoners and facilitate consideration of the good,”
Coleman v. Tollefson, 575 U.S. 532, 535 (2015) (alterations and citation omitted). The
rule bars a prisoner from suing in forma pauperis—that is, without first paying the filing
fee—if he
has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was
1 Whether the dismissal under Heck is a PLRA strike is a legal question that we review de novo. Blakely v. Wards, 738 F.3d 607, 610 (4th Cir. 2013) (en banc). 4 USCA4 Appeal: 22-7228 Doc: 42 Filed: 09/16/2024 Pg: 5 of 13
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). A prisoner who receives three strikes must prepay the filing fee
before proceeding, just like any other plaintiff. See 28 U.S.C. § 1914(a).
This case requires us to decide whether an action dismissed under Heck is dismissed
for “fail[ure] to state a claim upon which relief may be granted.” If so, such a dismissal
counts as a strike under the PLRA. § 1915(g).2 In Heck, the Supreme Court held that “in
order to recover damages for . . . harm caused by actions whose unlawfulness would render
[his] conviction or sentence invalid, a § 1983 plaintiff must prove that [his] conviction or
sentence has been” invalidated. 512 U.S. at 486–87. This is known as the “favorable-
termination requirement,” and suits dismissed for failing to meet it are said to be “Heck-
barred.” Before bringing this § 1983 suit, Brunson unsuccessfully filed four § 1983 suits,
each of which was found to be Heck-barred. So if Heck dismissals count as strikes under
the PLRA, then Brunson cannot proceed in forma pauperis on appeal, as he falls within
the three-strikes rule.
This question is the subject of an entrenched circuit split. See Lomax, 140 S. Ct. at
1724 n.2 (noting the split but declining to reach the issue). The Third, Fifth, Tenth, and
D.C. Circuits have held that Heck dismissals are necessarily for failure to state a claim. See
Garrett v. Murphy, 17 F.4th 419, 427 (3d Cir. 2021); Colvin v. LeBlanc, 2 F.4th 494, 497–
2 Defendants do not argue that Brunson’s prior Heck-barred suits were dismissed because they were frivolous or malicious. Nothing in this opinion forecloses this as an alternative ground for finding a strike in future cases. 5 USCA4 Appeal: 22-7228 Doc: 42 Filed: 09/16/2024 Pg: 6 of 13
99 (5th Cir. 2021); Smith v. Veterans Admin., 636 F.3d 1306, 1312 (10th Cir. 2011); In re
Jones, 652 F.3d 36, 38 (D.C. Cir. 2011). The Second, Seventh, and Ninth Circuits,
meanwhile, have held, to varying degrees, that Heck dismissals are not, or sometimes are
not, strikes under the PLRA. See Cotton v. Noeth, 96 F.4th 249, 257 (2d Cir. 2024) (holding
that “whether a Heck dismissal qualifies as a strike depends on . . . whether the dismissal
turned on the merits or whether it was simply a matter of sequencing or timing”);
Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1055 (9th Cir. 2016) (holding that
a Heck dismissal counts as a strike only when “Heck’s bar to relief is so obvious from the
face of the complaint, and the entirety of the complaint is dismissed for a qualifying reason
under the PLRA”); Mejia v. Harrington, 541 F. App’x 709, 710 (7th Cir. 2013) (holding
that Heck “deal[s] with timing rather than the merits of litigation”).3
Until now, our Circuit had not waded into this conceptual morass.4 Today, we
conclude that Heck’s favorable-termination requirement is an element of the type of § 1983
3 Whether the First and Eleventh Circuits classify a Heck dismissal as one for failure to state a claim is unclear. Compare O’Brien v. Town of Bellingham, 943 F.3d 514, 529 (1st Cir. 2019) (stating that “[w]hether Heck bars § 1983 claims is a jurisdictional question”), with Figueroa v. Rivera, 147 F.3d 77, 81 (1st Cir. 1998) (describing the favorable-termination requirement as an “element” of plaintiff’s claim); Harrigan v. Metro Dade Police Dep’t Station #4, 977 F.3d 1185 n.4 (11th Cir. 2020) (explaining that the circuit’s precedents had previously “said in dicta that Heck strips a federal court of jurisdiction” but also that “Heck deprives the plaintiff of a cause of action,” and ultimately declining to decide the issue). 4 We once suggested that Heck might be a variant of the Rooker-Feldman doctrine. Jordahl v. Democratic Party of Va., 122 F.3d 192, 201–02 (4th Cir. 1997). But this discussion occurred in dicta that was not necessary to the case’s disposition. See Wideman v. Innovative Fibers LLC, 100 F.4th 490, 497 n.7 (4th Cir. 2024). So we are not bound by this statement in Jordahl. 6 USCA4 Appeal: 22-7228 Doc: 42 Filed: 09/16/2024 Pg: 7 of 13
claims Heck identified. Heck, 512 U.S. at 483. Accordingly, we hold that a dismissal
under Heck is necessarily a dismissal for “failure to state a claim upon which relief may be
granted” and qualifies as a PLRA strike. § 1915(g).
Start with Heck’s holding. Under Heck, for certain damages claims having to do
with convictions or sentences, “a § 1983 plaintiff must prove that the conviction or
sentence has been . . . invalidated.” 512 U.S. at 486–87. If a plaintiff’s “claim for
damages” flunks this requirement, then that claim “is not cognizable under § 1983.” Id. at
487. That is, if a plaintiff cannot show invalidation, we “deny the existence of a cause of
action.” Id. at 489.
Next consider why Heck denied the existence of a cause of action. It’s because a
Heck-barred plaintiff has failed to “allege[] and prove[]” an element of that cause of action.
Heck, 512 U.S. at 484. This follows from basic principles about causes of action. A cause
of action is the “group of operative facts”—also known as “elements”—“giving rise to one
or more bases for suing.” Cause of Action, Black’s Law Dictionary (12th ed. 2024). A
plaintiff has a cause of action (that is, his action “accrues”) if it is “complete and present.”
Corner Post, Inc. v. Bd. of Govs. of Fed. Rsrv. Sys., 144 S. Ct. 2440, 2451 (2024). And a
cause of action is complete and present if all its elements exist. Id. Rephrased in the
negative, a cause of action does not exist only if one or more elements is missing. That
means for a Heck-barred plaintiff to lack a cause of action, an element must be missing.
And Heck tells us what is missing: favorable termination. See 512 U.S. at 489–90 (“[A]
§ 1983 cause of action for damages attributable to an unconstitutional conviction or
sentence does not accrue until the conviction or sentence has been invalidated.”).
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Heck’s reasoning confirms this conclusion. A § 1983 claim generally derives its
“elements of damages and the prerequisites for their recovery” from whatever common-
law tort is most analogous to that § 1983 claim. 512 U.S. at 483–86 (citation omitted).5
And as Heck reasoned, a § 1983 claim calling into question the validity of one’s conviction
or confinement requires favorable termination because favorable termination is an
“element” of malicious prosecution. Id. at 484. In Heck’s language, “[o]ne element that
must be alleged and proved in a malicious prosecution action is termination of the prior
criminal proceeding in favor of the accused.” Id. (emphasis added). So a plaintiff must
first allege, and ultimately prove, that same element for a similar claim to be cognizable
under § 1983. See id. at 489–90. Without the element, the plaintiff lacks a “complete and
present cause of action” under § 1983. McDonough v. Smith, 588 U.S. 109, 119 (2019)
(quotation marks and citations omitted); see Heck, 512 U.S. at 489.6
For this reason, a Heck-barred plaintiff fails to state a claim upon which relief may
be granted. A plaintiff who has no “cause of action,” Heck, 512 U.S. at 489, has no claim
5 As we have recognized, § 1983 does not provide its own elements; instead, § 1983 is a vehicle for vindicating claims that derive their elements from elsewhere. “To identify the elements . . . for a § 1983 claim, we ‘look first to the common law of torts’ to identify the most analogous tort.” Smith v. Travelpiece, 31 F.4th 878, 883–84 (4th Cir. 2022) (quoting Manuel v. City of Joliet, 137 S. Ct. 911, 910 (2017)). Once we have found “that common-law analogy . . ., the court incorporates its elements” into the § 1983 action. Id. at 884. 6 We have described Heck this way before. See Travelpiece, 31 F.4th at 884 (describing Heck as “incorporating the favorable-termination element for malicious prosecution”). 8 USCA4 Appeal: 22-7228 Doc: 42 Filed: 09/16/2024 Pg: 9 of 13
either.7 The Supreme Court has recognized as much: If a plaintiff fails to plead a required
element and his claim is thus “not cognizable under § 1983,” the appropriate remedy is
dismissal for failure to state a claim. Estelle v. Gamble, 429 U.S. 97, 107–08 (1976); see
also Skinner v. Switzer, 562 U.S. 521, 533–37 (2011) (reaffirming that a plaintiff cannot
“proceed under § 1983” when his claim is Heck-barred). Put another way, a Heck-barred
plaintiff cannot “survive a motion to dismiss” because he cannot “plausibly allege facts
that, if proven, would be sufficient to establish each element of the claim.” Harvey v. Cable
News Network, Inc., 48 F.4th 257, 268–69 (4th Cir. 2022) (citations omitted) (emphasis
added). All told, the upshot of Heck’s holding—that certain plaintiffs have a cause of
action only if they show favorable termination—is that when such a plaintiff does not show
favorable termination, that plaintiff has no cause of action and thus fails to state a claim.8
Rather than treat Heck as defining an element of certain causes of action under
§ 1983, Brunson urges us to adopt the Ninth Circuit’s holding in Washington v. L.A. Cnty.
Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016). There, our sister circuit held that Heck’s
favorable-termination requirement is more like an affirmative defense than an element. Id.
at 1056. Accordingly, the Ninth Circuit recognizes that a Heck dismissal is only for failure
7 See, e.g., Claim, Black’s Law Dictionary (6th ed. 1990) (defining “claim” as “[a] cause of action”). 8 For this reason, Heck was not about subject-matter jurisdiction. The absence of a complete cause of action does not deprive a federal court of subject-matter jurisdiction. Bell v. Hood, 327 U.S. 678, 682 (1946) (“Jurisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.”). Since Heck “den[ied] the existence of a cause of action” absent the favorable-termination element, 512 U.S. at 489, the lack of that element “does not implicate subject-matter jurisdiction,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). 9 USCA4 Appeal: 22-7228 Doc: 42 Filed: 09/16/2024 Pg: 10 of 13
to state a claim “if there exists an ‘obvious bar to securing relief on the face of the
complaint.’” Id. at 1056; see Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th
Cir. 2013) (“When an affirmative defense is obvious on the face of a complaint, . . . a
defendant can raise that defense in a motion to dismiss.”).
But each reason Washington gives conflicts with Heck itself. To begin, Washington
rationalized that the favorable-termination requirement can’t be an element of a cause of
action because it appears nowhere in § 1983’s text. 833 F.3d at 1056. But this argument
misapprehends Heck and § 1983 alike. Heck didn’t purport to draw the favorable-
termination requirement from § 1983’s text; it drew it from an analogy to malicious
prosecution. 512 U.S. at 483–86. And for good reason. By its text, § 1983 requires
elements outside the statute itself. Section 1983 states that “Every person who, under color
of [state law], . . . depriv[es a party] of any rights . . . secured by the Constitution and laws,
shall be liable to the party . . . .” (emphasis added). In other words, the statute “is not itself
a source of substantive rights, but a method for vindicating federal rights elsewhere
conferred by those parts of the United States Constitution and federal statutes that it
describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Section 1983’s text thus
contemplates that any cause of action brought using this “method,” id., will necessarily
require elements not enumerated in the statute. And when the cause of action resembles
the common law tort of malicious prosecution, favorable termination is an element under
§ 1983 just as it was an element at common law. See, e.g., Carter v. Greenhow, 114 U.S.
317, 322–23 (1885); Thompson v. Clark, 596 U.S. 36, 42–44 (2022); see also supra note
5.
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Next, Washington reasons that favorable termination cannot be an element because
it’s only required if the court makes the “threshold legal determination . . . that the
requested relief would undermine the underlying conviction.” 833 F.3d at 1056. This is
partly true. Heck said that favorable termination is required only if a court determines that
“a judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence.” 512 U.S. at 487. But that doesn’t mean a favorable termination
is not an element of certain § 1983 claims. As just explained, when a plaintiff alleges a
violation of a constitutional right under § 1983, we “look to the elements of the most
analogous tort as of 1871 when § 1983 was enacted.” Thompson, 596 U.S. at 43; see Heck,
512 U.S. at 483. That is how we know what elements the plaintiff must plead and prove.
So the “threshold inquiry” Washington refers to is both indispensable and logically prior
to the elements: the court must determine what kind of action the plaintiff is bringing in
order to determine what elements he’s required to “allege[]” in the complaint and ultimately
“prove[]” on the merits. Heck, 512 U.S. at 484.
Third, Washington reads Heck as mandating dismissal not because a plaintiff fails
to plead a necessary element, but as “a matter of ‘judicial traffic control’” that “most closely
resembles” an affirmative defense: “the mandatory administrative exhaustion of PLRA
claims.” Washington, 833 F.3d at 1056. But this too runs headlong into Heck. Heck
specifically and repeatedly said that § 1983 does not have an exhaustion requirement and
that it was not creating one. 512 U.S. at 483, 488, 489. And in disclaiming any notion that
it was “engraft[ing] an exhaustion requirement upon § 1983,” the Court explicitly said that
it was instead “deny[ing] the existence of a cause of action.” Id. at 489. So even if
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dismissals for failure to state a claim sometimes function as “judicial traffic control,”
Heck’s stoplight, by its very language, isn’t akin to an exhaustion requirement.
Last, Washington’s conclusion is as hard to reconcile with Heck as the reasons
Washington gives for it. Heck made apparent that the plaintiff bears the burden of alleging
and proving favorable termination. Id. at 486–87 (“[I]n order to recover damages for
allegedly unconstitutional conviction or imprisonment, . . . a § 1983 plaintiff must prove
that the conviction or sentence has been [invalidated].” (emphasis added)); id. at 486–87
(“[T]he complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.” (emphasis added)). Generally,
plaintiffs bear the burden of proving elements. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). They don’t bear the burden of alleging or proving the absence of affirmative
defenses. See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). Defendants
bear that burden.
In sum, everything in Heck points to the conclusion that favorable termination is an
element of a plaintiff’s cause of action under § 1983. Arguments to the contrary don’t hold
water. And without a cause of action, a plaintiff has no claim upon which relief may be
granted. So the dismissal of an action under Heck is a dismissal for failure to state a claim
and thus a strike under the PLRA.
* * *
“[T]o be a good judge and a good umpire, you [] have to follow the established rules
and the established principles.” Brett M. Kavanaugh, The Judge as Umpire: Ten
Principles, 65 Cath. U. L. Rev. 683, 686 (2016). Heck established the rule that a plaintiff
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who asserts a damages claim challenging his conviction or confinement fails to state a
claim unless he alleges and proves favorable termination. Since Brunson has filed at least
three prior actions that were dismissed as Heck-barred, our role as umpires is to strike him
out under the PLRA. Brunson’s motion to proceed in forma pauperis is thus
DENIED.