William Escalera, Jr. v. Samaritan Village ( 2019 )

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.
3
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.
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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
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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
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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).
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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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