 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT


Argued February 15, 2018               Decided March 16, 2018

                         No. 15-5324

                JOSEPH MICHAEL LADEAIROUS,
                        APPELLANT

                               v.

 JEFF SESSIONS, U.S. ATTORNEY GENERAL AND MICHAEL E.
           HOROWITZ, U.S. INSPECTOR GENERAL,
                       APPELLEES

         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:15-cv-00954)

     Dawn E. Murphy-Johnson, appointed by the court, argued
the cause as amicus curiae in support of appellant. With her on
the briefs was Anthony F. Shelley, appointed by the court.

    Joseph Michael Ladeairous, pro se, filed the briefs for
appellant.

    Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Jessie Liu, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

   Before: SRINIVASAN and WILKINS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
                                2

   Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

     WILLIAMS, Senior Circuit Judge: We recently decided that
under the Prison Litigation Reform Act (the “PLRA”) a district
court’s decision to decline to exercise supplemental jurisdiction
over state law claims does not count as a “strike” against a
prisoner seeking in forma pauperis (“IFP”) privileges in later
litigation. Fourstar v. Garden City Grp., Inc., 875 F.3d 1147
(D.C. Cir. 2017). This case presents a wrinkle on that one: what
happens when a district court in effect, though not in its exact
terms, declines to hear state law claims in situations where 28
U.S.C. § 1367 would authorize it to resolve them? Following
the principle of Fourstar, we again hold that this is not a strike
under the PLRA. We therefore grant appellant’s petition to
proceed IFP in this court, and we remand with instructions for
the district court to do the same.

                              * * *

     Appellant Joseph Michael Ladeairous filed his pro se
complaint in the district court in June 2015, alleging abusive
investigation and persecution by state and federal officials
because of his activities in support of the Irish republican cause.
Ladeairous v. Lynch, Civil No. 15-954, ECF No. 1 (D.D.C.
June 22, 2015). Those claims are not before us; we are called
simply to answer the threshold question of whether Ladeairous
can proceed in the district court IFP. The district court found
that he had already accumulated three strikes under the PLRA
and so denied his IFP petition. Ladeairous v. Lynch, Civil No.
15-954, ECF No. 11 (D.D.C. Feb. 29, 2016).

     Before the PLRA, federal courts had broad discretion to
exempt indigent prisoners from paying court filing fees. See
Ibrahim v. District of Columbia, 208 F.3d 1032, 1036 (D.C.
Cir. 2000). The PLRA now regulates courts’ discretion to grant
                                 3

IFP status to prisoners who have a history of litigation that
Congress effectively deemed meritless. In what is known as
the “three strikes” provision, the PLRA requires that:

    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).

    The government and the court-appointed amicus agree that
Ladeairous accumulated two strikes before filing the instant
case in district court: namely, Ladeairous v. Goldsmith, Civil
No. 13-673, 2015 WL 1787297 (E.D. Va. Apr. 15, 2015)
(dismissed for frivolousness and for failure to state a claim),
and Ladeairous v. Pearson, Civil No. 12-307, 2013 WL
5962932 (E.D. Va. Nov. 6, 2013) (same). They dispute
whether the district court should have counted a third dismissal,
Ladeairous v. Attorney General of New York, Civil No. 14-250
(N.D.N.Y. July 8, 2014) (“Ladeairous NDNY”), as a strike.

     The PLRA requires a district court to bar a prisoner from
proceeding IFP “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.” Fourstar, 875 F.3d at 1152. Our review of
that evaluation is de novo. See id. at 1150.
                                4

                             * * *

     Ladeairous filed his complaint in Ladeairous NDNY in
March 2014. Civil No. 14-250, ECF No. 1 (N.D.N.Y. Mar. 7,
2014). In June, the district court dismissed the complaint sua
sponte under the PLRA’s requirement that courts pre-screen
prisoner complaints against government entities and officers
“as soon as practicable after docketing.” 28 U.S.C. § 1915A(a);
Civil No. 14-250, ECF No. 8 (N.D.N.Y. June 4, 2014). The
complaint (as interpreted by the district court) alleged a variety
of federal claims, all appearing to arise out of state officials’
failure to grant his request for information under New York’s
“FOIL” statute (New York’s equivalent of the Freedom of
Information Act), plus a claim under FOIL itself. The district
court dismissed some of the federal claims with prejudice and
dismissed others—including the FOIL claim—without
prejudice; the court granted Ladeairous thirty days to file an
amended complaint (but excluded the FOIL claim from the
leave to amend). In July, the district court dismissed
Ladeairous’s amended complaint (this time without leave to
replead any claims), issued a final judgment, and
administratively closed the case. Civil No. 14-250, ECF Nos.
10–11 (N.D.N.Y. July 8, 2014). Ladeairous appealed the
dismissal, and the Second Circuit affirmed in a summary order.
Ladaeirous v. Attorney General of New York, 592 F. App’x 47
(2d Cir. 2015).

     In both of its rulings the district court dismissed the FOIL
claim explicitly “without prejudice” but without leave to
replead the claim in the district court. That combination would
under some definitions be viewed as an oxymoron since “[t]he
primary meaning of ‘dismissal without prejudice’ . . . is
dismissal without barring the plaintiff from returning later, to
the same court, with the same underlying claim.” Semtek Int’l
Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001).
                                5

     We think the most sensible reading of what the district
court did was that it dismissed Ladeairous’s federal claims for
failure to state a claim upon which relief could be granted, but
it declined to hear or decide the complaint’s state law claim.
Liberally construing the pro se complaint, the district court
found that the “gravamen of plaintiff’s complaint is that he filed
requests to review public records pursuant to FOIL, and
defendants denied or did not adequately respond to the FOIL
requests.” Ladeairous NDNY, Civil No. 14-250, ECF No. 8, at
9. To the extent that Ladeairous had improperly pleaded his
state law FOIL denial as a violation of 42 U.S.C. § 1983,
perhaps under the commonly held but mistaken notion that state
officials’ violations of state law are ipso facto violations of the
federal constitution, the court dismissed the § 1983 claim for
failure to state a claim under federal law. Id. But it noted in
both dismissal opinions that the FOIL claim was “dismissed
without prejudice to plaintiff pursuing any remedies he may
have available in state court, but he may not amend the claim
in this action.” Id. at 15 n.7; see also Civil No. 14-250, ECF
No. 10, at 2 n.1.

     The government contends this disposition must count as a
strike because the district court’s dismissal ruling used the
literal phrase—“fails to state a claim upon which relief may be
granted”—found in the PLRA. See 28 U.S.C. § 1915(g). But
“all that matters for the purpose of counting strikes is what the
earlier court actually did.” Thompson v. DEA, 492 F.3d 428,
439 (D.C. Cir. 2007). In Thompson, we granted that under the
“plain text” of § 1915(g) dismissal of a claim for failure to
exhaust expressly on 12(b)(6) grounds of failure to state a claim
would be a strike. Id. at 438. But “a dismissal for lack of
jurisdiction is not the same as a dismissal for failure to state a
claim: in enacting section 1915(g), Congress chose to mirror
the language of Federal Rule of Civil Procedure 12(b)(6), not
12(b)(1).” Id. at 437. For that reason, we decided in Fourstar
that a district court decision dismissing federal claims for
                                6

failure to state a claim but declining to hear state law claims
does not count as a strike. 875 F.3d at 1151–52. The
government essentially urges us not to follow Fourstar because
the district court did not explicitly identify the FOIL claim as a
state law claim and did not explicitly decline to exercise
supplemental jurisdiction under 28 U.S.C. § 1367.

     But Ladeairous complained about state agencies denying
his FOIL claim, and the district court restated the claim with no
federal adornments, i.e., as a plain state law claim. Ladeairous
sought in his prayer for relief the production of documents,
relief appropriate to a state FOIL claim. See Ladeairous
NDNY, Civil No. 14-250, ECF No. 1 ¶ 54. While dismissing
the inartfully pleaded § 1983 claims the district court made
clear Ladeairous could pursue state law remedies in the state
courts. Id., ECF No. 8 at 15; ECF No. 10 at 2, 6. By denying
leave to replead the FOIL claim, the district court declined to
hear state law claims, even if properly pleaded. But by making
this denial “without prejudice” the court made clear that its
judgment was not to have res judicata effects on the claim if
brought in another tribunal. See Restatement (Second) of
Judgments § 20(1)(b).

     We noted in Fourstar that “the district court may in
appropriate circumstances dismiss . . . 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.” 875 F.3d
at 1152. But plainly the district court in Ladeairous NDNY did
something quite different. That the district court took an
informal shortcut to this result does not change the essential
nature of what it did. Fourstar requires that Ladeairous NDNY
not count as a strike.

    The government suggests that Ladeairous’s Second Circuit
appeal may also count as a strike because the Second Circuit
                                7

“rejected appellant’s claims . . . as ‘without merit.’” Appellee’s
Br. 19. But we have held that an appeal counts as a PLRA strike
only if the appeal itself is frivolous—that is, if “an appellate
court expressly states that an appeal was frivolous” or dismisses
an appeal under 28 U.S.C. § 1915(e)(2). Thompson, 492 F.3d
at 436. An affirmance ordinarily will not constitute a strike
because it “does not necessarily imply an independent
judgment by the court of appeals that the appeal itself is
frivolous, but only that the district court correctly dismissed the
complaint.” Id. The Second Circuit affirmance contains no
such conclusion about the frivolity of the appeal.

     Finally, the government urges that in the event we find
Ladeairous’s IFP petition not automatically barred by §1915(g)
we exercise our discretion to deny him IFP privileges
nevertheless (presumably referring, though the government
doesn’t say, to Ladeairous’s petition in this court). To make
such a determination, we “examine the number, content,
frequency, and disposition of [a prisoner’s] previous filings to
determine if there is a pattern of abusing the IFP privilege in
his litigation history.” Butler v. Dep’t of Justice, 492 F.3d 440,
446 (D.C. Cir. 2007). The government points to Ladeairous’s
three dismissed actions recounted here, as well as appeals of
those dismissals, all filed over the course of seven years. As
we said in Thompson, “[t]his pattern of filing falls substantially
short of being abusive.” 492 F.3d at 439 (declining the
government’s request to deny IFP privileges for two prisoners
who had filed six actions and appeals in nine years and three
actions in one year); cf. Mitchell v. Federal Bureau of Prisons,
587 F.3d 415 (D.C. Cir. 2009) (denying IFP privileges to a
prisoner who had filed sixty-five actions and appeals); Hurt v.
Social Security Administration, 544 F.3d 308 (D.C. Cir. 2008)
(seventy appeals); Butler, 492 F.3d at 445–46 (twenty-five
actions and appeals).
                               8

                            * * *

    Appellant’s request to proceed IFP in this court is granted.
The district court’s denial of IFP status in the proceedings
below is

                                       Vacated and remanded.
