17‐2441‐pr
William Escalera, Jr. v. Samaritan Village, et al


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                              August Term 2019

              (Argued: September 10, 2019                  Decided: September 12, 2019)

                                           Docket No. 17‐2441‐pr



                                          WILLIAM ESCALERA, JR.,

                                                                  Plaintiff‐Appellant,

                                                    ‐ against ‐

SAMARITAN VILLAGE, MENʹS SHELTER, NEW YORK CITY DEPARTMENT OF HOMELESS
 SERVICES, COUNSELOR NELSON BROWN, POLICE OFFICER CLIFF MUELLER, POLICE
                     OFFICER BRIAN DEVITA, YONG LI,

                                                                  Defendants‐Appellees.



                    ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                        FOR THE SOUTHERN DISTRICT OF NEW YORK

Before:
                             WESLEY, CHIN, and BIANCO, Circuit Judges.



                  Appeal from an order of dismissal of the United States District Court

for the Southern District of New York (McMahon, C.J.), dismissing plaintiff‐
appellantʹs pro se 42 U.S.C. § 1983 complaint pursuant to the ʺthree strikesʺ

provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). Plaintiff‐

appellant contends that the district court erred in ruling that he was barred from

proceeding in forma pauperis and in dismissing the complaint on the basis that he

accrued three strikes.

              VACATED and REMANDED.



                            ERICK M. SANDLER, Sylvia‐Rebecca Gutierrez, Day
                                  Pitney LLP, Hartford, Connecticut, for Plaintiff‐
                                  Appellant.1



PER CURIAM:

              Plaintiff‐appellant William Escalera, Jr. appeals the district courtʹs

order sua sponte dismissing his pro se 42 U.S.C. § 1983 complaint pursuant to the

ʺthree strikesʺ provision of the Prison Litigation Reform Act (the ʺPLRAʺ), 28

U.S.C. § 1915(g). The district court issued an order of dismissal under § 1915(g)

on June 22, 2017. Judgment was entered June 22, 2017. For the reasons explained

below, we conclude that the district court erred in determining that Escalera had

accrued three strikes under § 1915(g). Accordingly, we vacate the district courtʹs


1      The district court dismissed the action below before defendants made an appearance,
and no brief has been filed on behalf of defendants on appeal.
                                              2
order of dismissal and remand the case to the district court for further

proceedings.

             The PLRA ʺthree‐strikesʺ provision provides 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).

             ʺThe district courtʹs decision that a certain type of dismissal

constitutes a ʹstrikeʹ for purposes of § 1915(g) is an interpretation of a federal

statute . . . which this Court reviews de novo.ʺ Tafari v. Hues, 473 F.3d 440, 442

(2d Cir. 2007) (alteration, and internal citation and quotation marks omitted).

             Here, the district court relied on Escalera v. Graham, No. 08‐CV‐412

GLS‐GHL, 2008 WL 4181741 (N.D.N.Y. May 27, 2008), to conclude that Escalera

had three strikes under the PLRA. In that case, the court identified five strikes.




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Upon independent review of those five strikes, however, we conclude that three

are not strikes.2

               The plain language of § 1915(g) defines a strike as ʺan action or

appealʺ that was dismissed on an enumerated ground, not as an individual claim

that was dismissed as frivolous, malicious, or for failure to state a claim. 28

U.S.C. § 1915(g) (emphasis added). The majority of circuits that have addressed

this issue agree that strikes are limited to ʺactions and appeals,ʺ and that

dismissal of some but not all of the multiple claims in a complaint on a § 1915(g)

ground cannot constitute a strike. See Brown v. Megg, 857 F.3d 287, 291 (5th Cir.

2017) (ʺImposing a strike only when the action itself is dismissed for one or more

of the qualifying reasons is consistent with the statuteʹs balance between

deterring frivolous filings while maintaining access to the courts for facially valid

claims.ʺ (emphasis added)); Byrd v. Shannon, 715 F.3d 117, 125 (3d Cir. 2013)

(holding a prisonerʹs ʺentire action or appealʺ must be dismissed on a § 1915(g)




2         Escalera does not dispute that Escalera v. Seligman, 05‐CV‐1391 (S.D.N.Y. Feb. 2, 2005),
was a strike. We decline to decide whether Escalera v. N.Y.P.D., 05‐CV‐1435 (S.D.N.Y. Feb. 4,
2005), is a strike. It is an open question whether a dismissal based on witness immunity is a
strike under the PLRA. Cf. Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (ʺAny claim
dismissed on the ground of absolute judicial immunity is ʹfrivolousʹ for purposes of [] §1915(g) .
. . .ʺ); Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011) (per curiam) (holding that dismissals
based on prosecutorial immunity count as strikes under the PLRA). Even if Escalera v. N.Y.P.D.
is considered a strike, Escalera would still have only two strikes under the PLRA.
                                                4
ground to count as a strike); Washington v. L.A. Cty. Sheriffʹs Depʹt, 833 F.3d 1048,

1057 (9th Cir. 2016) (same); Turley v. Gaetz, 625 F.3d 1005, 1008‐09 (7th Cir. 2010)

(ʺ[W]e believe that the obvious reading of [§ 1915(g)] is that a strike is incurred

for an action dismissed in its entirety on one or more of the three enumerated

grounds.ʺ (emphasis in original)); Thompson v. DEA, 492 F.3d 428, 440 (D.C. Cir.

2007) (ʺSection 1915(g) speaks of the dismissal of ʹactions and appeals,ʹ not

ʹclaims.ʹʺ).3

                Moreover, counting a partial § 1915(g) dismissal as a strike could

result in the anomalous situation where a prisoner succeeds on some claims yet

still accrues a strike if others are dismissed on § 1915(g) grounds. We therefore

hold, consistent with our sister circuits and the plain language of § 1915(g), that a

prisonerʹs entire ʺaction or appealʺ must be dismissed on a § 1915(g) ground to

count as a strike under the PLRA. Accordingly, mixed dismissals are not strikes

under the PLRA.




3       Although two circuits have held that some mixed dismissals can count as strikes, see
Thomas v. Parker, 672 F.3d 1182, 1183 (10th Cir. 2012) (mixed dismissal for failure to state a claim
and failure to exhaust counts as a strike); Pointer v. Wilkinson, 502 F.3d 369, 370 (6th Cir. 2007)
(same), those courts did so only in the specific context where claims were dismissed in part on
§ 1915(g) grounds and in part for failure to exhaust administrative remedies, and no claims
were allowed to proceed on the merits.
                                                 5
             Turning to Escaleraʹs cases that the district court in Escalera v.

Graham identified as strikes, we agree with Escalera that of the five cases, the

following three are not strikes.

      1.     Escalera v. Selsky, 06‐CV‐0837 (N.D.N.Y. Mar. 8, 2007)

             The district court dismissed this action because Escalera failed to

comply with an order to file a ʺlegibly written (typewritten, printed or

reproduced) and double spacedʺ amended complaint. This Court has held that

certain types of procedural dismissals do not constitute strikes under the PLRA.

See Snider v. Melindez, 199 F.3d 108, 111 (2d Cir. 1999) (holding that § 1915(g) does

not apply to suits dismissed ʺfor failure to comply with a procedural

prerequisiteʺ); see also Tafari, 473 F.3d at 443 (refusing to treat a premature appeal

as a strike and noting that the PLRA ʺwas designed to stem the tide of

egregiously meritless lawsuits, not those temporarily infected with remediable

procedural . . . flawsʺ). Because this alleged second strike was a dismissal for a

remediable procedural defect (illegible handwriting) and not a dismissal on a

§ 1915(g) ground, it does not count as a strike.




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      2.     Escalera v. Charwand, 04‐CV‐0983 (N.D.N.Y. Mar. 12, 2008)

             Escalera argues that the district court erroneously classified this case

as a strike because it was resolved at summary judgment and the district court

did not invoke any grounds in § 1915(g). When evaluating a dismissal at

summary judgment, courts have held that an inquiry into the basis of the district

courtʹs dismissal is required to determine whether the dismissing court deemed

the action frivolous, malicious, or failing to state a claim. See Brown, 857 F.3d at

290‐92 (holding that dismissal for failure to state a claim and grant of summary

judgment for lack of evidence was not a strike); El‐Shaddai v. Zamora, 833 F.3d

1036, 1044 (9th Cir. 2016) (holding that a grant of summary judgment for lack of

evidence was not a strike because it was not based on an enumerated ground

under § 1915(g)); Blakely v. Wards, 738 F.3d 607, 618 (4th Cir. 2013) (en banc)

(ʺ[A]n actionʹs dismissal [at summary judgment] as frivolous, malicious, or

failing to state a claim, and not the caseʹs procedural posture at dismissal,

determines whether the dismissal constitutes a strike.ʺ).

             Here, after evaluating the underlying basis for the district courtʹs

grant of summary judgment, we agree that this case does not qualify as a strike.

The magistrate judgeʹs report and recommendation ‐‐ accepted in its entirety by



                                          7
the district court ‐‐ held that (1) Escaleraʹs First Amendment claim was ʺdeficient

as a matter of lawʺ because he did not engage in protected speech; (2) his

procedural due process claim failed for lack of evidence; and (3) his equal

protection claim failed because there was nothing in the amended complaint or

the record to reflect any disparate treatment. Appʹx at 128. Notably, the district

court considered each of Escaleraʹs claims, which, taken as true, stated a claim for

relief, but granted summary judgment after evaluating the record and

determining that ʺthe evidence did not support the claim.ʺ El‐Shaddai, 833 F.3d at

1045. The district court did not find that the claims were frivolous or malicious.

In short, because the district court did not grant summary judgment against

Escalera on a ground enumerated in § 1915(g), this case does not qualify as a

strike.

          3.   Escalera v. N.Y.C. Hous. Depʹt, 05‐CV‐1446 (S.D.N.Y. Feb. 4, 2005)

               Escalera argues that this case is not a strike because the district court

dismissed some claims for failure to state a claim and others for lack of subject

matter jurisdiction.4 We agree. It is undisputed that a dismissal for ʺfail[ure] to




4       Escalera alternatively argues that the complaint was dismissed without prejudice and
that ʺunder the proper interpretation of § 1915(g),ʺ a dismissal for failure to state a claim
constitutes a strike ʺonly if the dismissal is with prejudice.ʺ Appellantʹs Br. at 13. We decline to
                                                 8
state a claimʺ is an enumerated ground under § 1915(g).5 Escaleraʹs complaint,

which stemmed from a trespassing arrest that purportedly resulted in his

eviction from public housing, was partly dismissed under 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failing to state a claim. The district court, however, also

relied on Federal Rule of Civil Procedure 12(h)(3), a non‐§1915(g) ground, which

mandates dismissal for lack of subject matter jurisdiction. The district court

noted that it lacked jurisdiction over ʺstate matters involving eviction

proceedingsʺ and expressly refrained from addressing the merits of the state

claim. Appʹx at 83‐84 & n.2. As concluded above, a mixed dismissal, on both

§ 1915(g) and non‐§ 1915(g) grounds, is not a strike. As a result, we conclude

that this case is not properly considered a strike under the PLRA because the

district court dismissed one of Escaleraʹs claims under a non‐§1915(g) ground.




reach this argument because we find that the district court erroneously counted this mixed
dismissal as a strike.
5       There is an open question, however, as to whether a ʺfailure to state a claimʺ dismissal
under Federal Rule of Civil Procedure 12(b)(6) necessarily qualifies as a strike under the PLRA.
Compare El‐Shaddai, 833 F.3d at 1043 (ʺif a claim is dismissed for failure to state a claim under
rule 12(b)(6), it counts as a strike for PLRA purposesʺ), with Byrd, 715 F.3d at 124
(acknowledging the difference in language between § 1915(g) and Rule 12(b)(6) and crediting
ʺsome persuasive effectʺ to the argument that § 1915(g) and Rule 12(b)(6) are distinct for
purposes of counting strikes under the PLRA). We need not reach this question because none of
Escaleraʹs previous cases were complete dismissals under Rule 12(b)(6).
                                               9
             We discern no basis to make an exception to the general rule for

dismissals for lack of subject matter jurisdiction. On the other hand, while

dismissal based on subject matter jurisdiction is not an enumerated ground

under § 1915(g), we recognized in Tafari that there may be cases where the

prisonerʹs argument for subject matter jurisdiction is so baseless that the action or

appeal may be considered ʺfrivolous.ʺ See Tafari, 473 F.3d at 444 (noting that a

ʺjurisdictionally barred appeal [that] is a part of a broader pattern of vexatious

conduct on the part of the litigantʺ might be considered frivolous). Here, the

district court did not determine that Escaleraʹs present claims were frivolous or

malicious.

             The PLRA was enacted to deter frivolous prisoner lawsuits and

appeals ‐‐ not potentially meritorious state claims filed in the wrong court by a

pro se and incarcerated litigant. See id. at 443‐44 (distinguishing between

frivolous prisoner lawsuits, which are subject to the PLRA, and jurisdictionally

defective ones, which are not). This is particularly true here, where the district

court did not reach the merits of Escaleraʹs state claim or deem it defective on

§ 1915(g) grounds. See Washington, 833 F.3d at 1058 (ʺDismissal on jurisdictional




                                         10
grounds occurs not only before an examination of the merits, but curtails such an

examination.ʺ).

                                 CONCLUSION

            For the reasons set forth above, the district courtʹs judgment is

VACATED and the case is REMANDED for further proceedings.




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