 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 11, 2017             Decided November 28, 2017

                         No. 15-5049

              VICTOR CHARLES FOURSTAR, JR.,
                       APPELLANT

                               v.

             GARDEN CITY GROUP, INC., ET AL.,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:15-mc-00076)


    Jonathan D. Kossack, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on
the briefs were Anthony F. Shelley and Dawn E. Murphy-
Johnson, appointed by the court.

    Victor C. Fourstar Jr., pro se, filed the brief for appellant.

     Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for federal appellees. With her on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.

   Before: KAVANAUGH and MILLETT, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
                                 2
    Opinion for the Court filed by Circuit Judge KAVANAUGH.

     KAVANAUGH, Circuit Judge: In 1996, Congress passed
and President Clinton signed the Prison Litigation Reform Act,
known as the PLRA. The Act sought to stem the tide of
frivolous litigation filed in federal court by some federal and
state prisoners.

     Under the Act, a dismissal of a prisoner’s lawsuit for
failure to state a claim, or as frivolous or malicious, is
commonly referred to as a strike. With some limited
exceptions, the Act’s basic rule is this: Three strikes and the
prisoner is out of court. Specifically, a prisoner who has
previously filed three lawsuits that were dismissed for failure
to state a claim, or as frivolous or malicious, will ordinarily not
be granted in forma pauperis status to file a new lawsuit.

     This case presents two questions about the operation of the
PLRA. First, suppose a prisoner brings a suit with both federal
and state claims. Suppose that the district court dismisses the
prisoner’s federal claims for failure to state a claim, or as
frivolous or malicious, but declines to exercise supplemental
jurisdiction over the prisoner’s state-law claims. Does that
disposition count as a strike under the PLRA? Second, suppose
that the district court when dismissing a case
contemporaneously labels the case as a strike for purposes of
the Act. When the prisoner later seeks to file a new suit, may
the later district court simply defer to the earlier district court’s
labeling of the dismissal as a strike, or must the later district
court decide for itself whether the previous dismissal counts as
a strike?

    The text of the Act resolves those questions. First, the text
identifies the circumstances in which dismissal of a prisoner’s
lawsuit counts as a strike: when the case is dismissed for failure
                                3
to state a claim, or as frivolous or malicious. For a case to count
as a strike, all of a prisoner’s claims in the case must be
dismissed on one of those enumerated grounds. A case in
which a district court declines to exercise supplemental
jurisdiction over a prisoner’s state-law claims does not come
within that description and therefore does not count as a strike.
Second, the Act does not require or allow a later district court
to simply defer to an earlier district court’s contemporaneous
statement that a dismissal counts as a strike. The later district
court must independently evaluate whether the prior dismissals
were dismissed on one of the enumerated grounds and
therefore count as strikes.

    In this case, applying those principles, we conclude that
Fourstar has only one strike. As a result, absent any other
ground on which his in forma pauperis status may properly be
denied, he is entitled to in forma pauperis status and may
maintain his lawsuit. We therefore reverse the judgment of the
District Court denying Fourstar in forma pauperis status and
dismissing his case.

                                 I

     On December 19, 2014, while in federal prison, Fourstar
filed a complaint in the U.S. District Court for the District of
Columbia alleging constitutional violations by several U.S.
government officials. Along with his complaint, Fourstar filed
an application to proceed in forma pauperis. A party who is
unable to pay the fees and costs associated with filing a lawsuit
may apply to proceed in forma pauperis and be excused from
paying those fees and costs.

    The District Court denied Fourstar’s application to
proceed in forma pauperis and dismissed Fourstar’s suit. The
District Court denied in forma pauperis status because Fourstar
                                   4
had accumulated at least three strikes under the PLRA and
therefore was barred from proceeding in forma pauperis.

    The District Court counted three prior cases filed by
Fourstar as strikes: Fourstar v. Murlak, No. 07-cv-5892 (C.D.
Cal. May 26, 2010); Fourstar v. Ness, No. 4:05-cv-108 (D.
Mont. Apr. 26, 2006); and Fourstar v. Zemyan, No. 4:08-cv-50
(D. Mont. Aug. 26, 2008). 1

     The district court in Murlak concluded that Fourstar’s
complaint was frivolous and failed to state a claim upon which
relief could be granted. Fourstar correctly concedes that the
District Court here properly counted Murlak as a strike.

     The district court in Ness dismissed Fourstar’s federal
claims because he failed to state a claim upon which relief may
be granted. But in that case, Fourstar also brought state-law
claims.     The Ness district court declined to exercise
supplemental jurisdiction over Fourstar’s state-law claims
because they presented novel applications of state law. For
present purposes, it bears mention that the Ness district court
also expressly stated in its order that the case should count as a
strike against Fourstar under the PLRA.

     The district court in Zemyan dismissed Fourstar’s
complaint for lack of jurisdiction and dismissed his state-law
claims without prejudice. Like the district court in Ness, the
district court in Zemyan stated that the dismissal should count
as a strike against Fourstar.



     1
       Our decision is premised on the District Court’s conclusion
that those three cases constitute the only strikes against Fourstar. The
Government has not identified any other cases that might count as
strikes.
                                5
     Fourstar argues that Ness and Zemyan should not count as
strikes. Our review of the legal issues raised by his appeal is
de novo.

                                II

     The relevant section of the PLRA provides that a prisoner
may not proceed in forma pauperis if the prisoner has three
strikes: “In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under this
section if the prisoner 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 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).

     Fourstar argues that the Ness and Zemyan dismissals
should not count as strikes. He contends that the district courts
in those two cases did not dismiss all of Fourstar’s claims on
grounds enumerated in the PLRA. And he says that the Ness
and Zemyan district courts’ express statements that the cases
counted as strikes were incorrect and should receive no
deference from the District Court here.

                                A

    Does a case count as a strike when a district court
dismisses a prisoner’s federal claims for failure to state a claim,
or as frivolous or malicious, but declines to exercise
supplemental jurisdiction over the prisoner’s state-law claims?
The answer is no.
                                6
     The text of the Act and our decision in Thompson v. DEA,
492 F.3d 428 (D.C. Cir. 2007), guide our analysis. In
Thompson, this Court held that dismissals for lack of
jurisdiction do not count as strikes. The Court reasoned that all
of the claims in a case must be dismissed on grounds
enumerated in the PLRA in order for the case to count as a
strike. The Court explained that the PLRA “speaks of the
dismissal of actions and appeals, not claims. Indeed, it would
make no sense to say – where one claim within an action is
dismissed for failing to state a claim and another succeeds on
the merits – that the action had been dismissed for failing to
state a claim.” Id. at 432 (internal citation and quotation marks
omitted). The Court concluded that if “at least one claim within
an action or appeal falls outside section 1915(g), the action or
appeal does not count as a strike.” Id. at 440; see also Mitchell
v. Federal Bureau of Prisons, 587 F.3d 415, 418 (D.C. Cir.
2009) (internal citations and quotations omitted) (case does not
count as strike if case was “dismissed or disposed of, at least in
part, for reasons other than being frivolous, malicious, or
failing to state a claim upon which relief may be granted”).

     Our Thompson decision is consistent with the decisions of
at least seven other courts of appeals that have similarly
concluded that a case counts as a strike only if all of the claims
were dismissed on grounds enumerated in the PLRA. We are
aware of no court of appeals that has ruled otherwise. See, e.g.,
Brown v. Megg, 857 F.3d 287, 288 (5th Cir. 2017) (A “strike
does not issue when only some claims are dismissed on section
1915(g) grounds.”); Daker v. Commissioner, Georgia
Department of Corrections, 820 F.3d 1278, 1283-84 (11th Cir.
2016) (internal citation and quotations omitted) (“Three
specific grounds render a dismissal a strike: frivolous,
malicious, and fails to state a claim upon which relief may be
granted. Under the negative-implication canon, these three
grounds are the only grounds that can render a dismissal a
                                 7
strike.”); Byrd v. Shannon, 715 F.3d 117, 125 (3d Cir. 2013)
(internal citations omitted) (“We agree with the majority of our
sister courts of appeals that § 1915(g) requires that a prisoner’s
entire action or appeal be dismissed on enumerated grounds in
order for the dismissal to count as a strike.”); Taylor v. Hull,
538 F. App’x 734, 735 (8th Cir. 2013) (internal citation
omitted) (“The plain language in § 1915(g) requires that the
entire action be dismissed on one or more of three enumerated
grounds, i.e., as frivolous, malicious, or for failing to state a
claim.”); Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir.
2011) (footnote omitted) (“Accordingly, we conclude that
‘action’ in § 1915(g) unambiguously means an entire case or
suit. Therefore, § 1915(g) requires that a prisoner’s entire
‘action or appeal’ be dismissed on enumerated grounds in order
to count as a strike.”); Turley v. Gaetz, 625 F.3d 1005, 1008-09
(7th Cir. 2010) (internal citation omitted) (“Here we believe
that the obvious reading of the statute is that a strike is incurred
for an action dismissed in its entirety on one or more of the
three enumerated grounds.”); Andrews v. King, 398 F.3d 1113,
1121 (9th Cir. 2005) (prior dismissal qualifies as a strike only
if the action was “dismissed because it was frivolous, malicious
or failed to state a claim”).

     As we held in Thompson, if a court dismisses one or more
of a prisoner’s claims for a reason that is not enumerated in the
PLRA, the case does not count as a strike. When a district court
has declined to exercise supplemental jurisdiction over state-
law claims, the court has not dismissed the state-law claims for
failure to state a claim, nor has the court dismissed the state-
law claims as frivolous or malicious. Therefore, a case in
which a court declines to exercise supplemental jurisdiction
over state-law claims does not count as a strike.

     The Government argues that this approach will allow
prisoners to avoid accruing strikes by just willy-nilly adding
                                8
state-law claims to their federal claims. To begin with, if a
prisoner adds meritless state-law claims, the district court may
in appropriate circumstances dismiss those state-law claims for
failure to state a claim, or as frivolous or malicious, rather than
declining to exercise supplemental jurisdiction over the state-
law claims. If so, the case will still count as a strike. So we do
not envision a huge influx of cases in which a prisoner exploits
that possibility.

     That said, the Government is no doubt correct that there
will be at least some cases. The Government contends that
allowing that gambit would flout the purpose of the PLRA.
After all, as the Government rightly points out, Congress
enacted the PLRA to reduce frivolous litigation by prisoners
and to preserve the scarce resources of the courts and the
defendants in prisoner litigation.

     That may be true, but we nonetheless must stick to the text
of the statute. It is not a judge’s job to add to or otherwise re-
mold statutory text to try to meet a statute’s perceived policy
objectives. Instead, we must apply the statute as written. See
generally Milner v. Department of the Navy, 562 U.S. 562
(2011).

                                B

     When district courts dismiss prisoner actions, they
sometimes contemporaneously say in their orders that the
dismissal should count as a strike. For example, in Ness, the
dismissing district court stated “that the docket should reflect
that Plaintiff’s filing of this action count as one strike against
him, under 28 U.S.C. § 1915(g).” Fourstar v. Ness, No. 4:05-
cv-108 (D. Mont. Apr. 26, 2006). And in Zemyan, the
dismissing district court directed that the docket should “reflect
that the dismissal of” Fourstar’s complaint should “count as a
                                 9
strike.” Fourstar v. Zemyan, No. 4:08-cv-50 (D. Mont. Aug.
26, 2008).

     What happens when the dismissing district court expressly
states that its dismissal of a prisoner’s case should be counted
as a strike for future purposes? In particular, may a later district
court simply defer to an earlier district court’s
contemporaneous labeling of a case as a strike? The answer is
no.

     The PLRA requires the district court in the current case to
bar a prisoner from proceeding in forma pauperis only if that
district court determines that a prisoner has three strikes.
District courts must independently evaluate prisoners’ prior
dismissals to determine whether there are three strikes. A
district court may not relinquish that statutory responsibility
simply because a prior dismissing court has labeled a dismissal
as a strike.        If Congress wanted district courts to
contemporaneously label dismissals as strikes or wanted those
labels to bind later district courts, Congress could have said so
in the PLRA. Congress said no such thing.

     The Government’s argument, if accepted, would produce
grossly inequitable and even absurd results. Because district
courts are not statutorily obligated to contemporaneously label
dismissals as strikes, some district courts do so but some
district courts do not. But the happenstance of whether a
district court has contemporaneously attached a “strike” label
to a dismissal cannot be the key to the courthouse door. We
see no indication that Congress sought to impose such a
haphazard and inequitable system for stemming the tide of
prisoner litigation. Indeed, perhaps in recognition of that point
and to avoid confusion, the Second Circuit has instructed
district courts in that circuit not to contemporaneously label
                                     10
cases as strikes in the first place. See Deleon v. Doe, 361 F.3d
93, 95 (2d Cir. 2004).

     In short, a district court’s labeling of a dismissal as a strike
undoubtedly may help later district courts to identify potential
strikes in a prisoner’s litigation history. But a prisoner may be
barred from proceeding in forma pauperis only if the later
district court independently determines that the prisoner has
brought three cases that were dismissed for failure to state a
claim, or as frivolous or malicious. 2

                                    ***

     We reach two conclusions in this appeal. First, a case in
which a district court declines to exercise supplemental
jurisdiction over a prisoner’s state-law claims – and does not
dismiss those claims for failure to state a claim, or as frivolous
or malicious – does not count as a strike under the PLRA.
Second, a later district court may not defer to an earlier district
court’s contemporaneous decision to label a dismissal as a
strike.

    Applying those principles here, the Ness and Zemyan cases
do not count as strikes against Fourstar. Fourstar therefore has
only one strike and may proceed in forma pauperis and
maintain his new suit.


     2
         To be clear, as this Court has said, the later district court must
independently determine whether the dismissal in the earlier case occurred
on grounds enumerated in the PLRA, but the later district court may not
relitigate the underlying merits of those past dismissals. Thompson, 492
F.3d at 438-39. Put another way, the question of whether a prior district
court properly labeled the case as a strike is distinct from the question of
whether a prior district court properly dismissed a case for failure to state a
claim, or as frivolous or malicious. The former is not binding on the later
district court; the latter is binding on the later district court.
                           11
    We reverse the judgment of the District Court denying
Fourstar in forma pauperis status and dismissing his case.

                                               So ordered.
