Thompson v. Drug Enforcement Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 19, 2007 Decided June 26, 2007

No. 04-5450

MICHAEL A. THOMPSON,
APPELLANT

v.

DRUG ENFORCEMENT ADMINISTRATION, ET AL.,
APPELLEES

Appeals from the United States District Court
for the District of Columbia
(No. 04cv01118)

No. 05-5082

CHARLES E. THOMPSON,
APPELLANT

v.

GORDON R. ENGLAND, SECRETARY OF THE NAVY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 03cv00295)
 2

Amy L. Koch, Student Counsel, argued the cause as amicus
curiae in support of appellant in No. 04-5450. With her on the
briefs were Steven H. Goldblatt, appointed by the court, and
David Arkush, Supervising Attorney.

Emily Hughes, Student Counsel, argued the cause as amicus
curiae in support of appellant in No. 05-5082. With her on the
briefs were Steven H. Goldblatt, appointed by the court, and
David Arkush, Supervising Attorney.

Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee in Nos. 04-5450 and 05-5082. With him on the brief
were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence
and W. Mark Nebeker, Assistant U.S. Attorneys. Michael J.
Ryan, Assistant U.S. Attorney, entered an appearance.

Before: TATEL, BROWN, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In these two cases, we consider
motions by two prisoners for leave to file appeals in forma
pauperis. The Prison Litigation Reform Act requires that we
deny their motions if on three or more occasions they have
brought an action or appeal in federal court that was “dismissed
on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted.” 28 U.S.C. § 1915(g).
Reviewing the litigation histories of the two prisoners, we find
that neither has undertaken three or more such actions or appeals
and therefore grant both leave to proceed in forma pauperis.
 3

I.

In enacting the Prison Litigation Reform Act (PLRA), Pub.
L. No. 104-134, 110 Stat. 1321 (1996), “Congress’s principal
intent was to reduce frivolous litigation by prisoners challenging
conditions of their confinement.” Blair-Bey v. Quick, 151 F.3d
1036, 1040 (D.C. Cir. 1998). Senator Robert Dole, one of the
PLRA’s principal sponsors, noted that “[p]risoners have filed
lawsuits claiming such grievances as insufficient storage locker
space, being prohibited from attending a wedding anniversary
party, and yes, being served creamy peanut butter instead of the
chunky variety they had ordered.” 141 CONG. REC. 14,570,
14,570 (1995). These types of “frivolous lawsuits,” Senator
Dole explained, “waste valuable judicial and legal resources,
and affect the quality of justice enjoyed by the law-abiding
population.” Id. at 14,571.

To weed out such cases, Congress (1) imposed an
exhaustion requirement for challenges to prison conditions
brought under 42 U.S.C. § 1983, see 42 U.S.C. § 1997e(a); (2)
created a screening procedure, referred to as section 1915A
review, under which courts must dismiss before docketing any
prisoner complaint that is “frivolous, malicious, or fails to state
a claim upon which relief may be granted; or . . . . seeks
monetary relief from a defendant who is immune from such
relief,” 28 U.S.C. § 1915A(b); and (3) restricted federal court
discretion to allow prisoners to file suit without paying filing
fees, that is, to proceed in forma pauperis (IFP). The PLRA
accomplishes this latter restriction in two ways. First, prior to
the PLRA, federal courts could exempt indigent prisoners from
paying filing fees. Ibrahim v. District of Columbia, 208 F.3d
1032, 1033 (D.C. Cir. 2000). Under the PLRA, however,
prisoners whom courts allow to proceed IFP must pay the entire
fee over time, though they need not pre-pay in full for the action
or appeal to commence. 28 U.S.C. § 1915(a), (b).
 4

Second—and central to the issues before us—the PLRA
limits courts’ discretion to grant IFP status to prisoners with a
track record of frivolous litigation. Known as the “three strikes”
provision, it 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).

Michael Thompson and Charles Thompson, both prisoners
subject to the PLRA, move for leave to appeal IFP. See FED. R.
APP. P. 24(1)(5). Because neither contends that he is “under
imminent danger of serious physical injury,” the sole question
before us is whether either of the two prisoners has accrued
three strikes prior to this appeal.

Michael Thompson has seven actions and appeals that
could qualify as strikes. One is the case he seeks to appeal
here—a suit against the U.S. Drug Enforcement Agency under
the Freedom of Information Act, 5 U.S.C. §§ 552 et seq., and the
Privacy Act, 5 U.S.C. § 552a. The district court dismissed that
complaint in part on res judicata grounds and in part for failure
to exhaust administrative remedies. Michael A. Thompson v.
DEA, No. 04-1118, slip op. at 2–4 (D.D.C. Oct. 28, 2004).
Before the instant action and appeal, Michael Thompson had,
 5

according to the record before us, filed the following federal
actions and appeals:

• a suit against the St. Louis Police Department
dismissed as frivolous by the Eastern District of
Missouri;
• an appeal of that dismissal to the Eighth Circuit in
which the judgment was affirmed;
• a FOIA suit against the Department of Justice that the
District Court for the District of Columbia dismissed
on grounds unascertainable from the record before us;
• an appeal of that case to this Court in which the
judgment was affirmed;
• a Bivens action dismissed for lack of subject matter
jurisdiction by the District Court for the Eastern
District of Missouri; and
• an appeal of a second FOIA action in which this court
affirmed the district court’s grant of summary
judgment against Michael Thompson (the record
contains no information about the underlying district
court proceedings).

Charles Thompson has four potential strikes. First, in our
district court, he sued the Secretary of the Navy under the
Privacy Act and the Administrative Procedure Act, 5 U.S.C.
§ 706. The district court dismissed the former for lack of
subject matter jurisdiction and granted summary judgment for
the government on the latter. Charles E. Thompson v. Danzig,
No. 03-0295, slip op. at 2 (D.D.C Feb. 9, 2005); Charles E.
Thompson v. Danzig, No. 03-0295, slip op. at 7 (D.D.C Mar. 31,
2004). Prior to the instant action and appeal, the record shows
that Charles Thompson brought three federal actions:

• a suit against DeKalb County, Georgia, dismissed as
frivolous by the Northern District of Georgia;
 6

• an appeal thereof to the Eleventh Circuit that a single
circuit judge hearing the IFP motion declared to be
frivolous; and
• another suit in the District Court for the Northern
District of Georgia, referred to as the Veterans Service
Board case, in which the court dismissed Thompson’s
complaint in part on statute of limitations grounds and
in part for lack of standing.

Together, these two motions present five unresolved
questions, which we shall consider in turn:

1) Do prisoners moving to proceed IFP bear the burden of
proving their eligibility for IFP status?
2) Do appellate affirmances of cases dismissed as
frivolous count as strikes?
3) Do actions and appeals in which the court lacks
jurisdiction count as strikes?
4) Do actions and appeals defeated by a failure to exhaust
count as strikes?
5) Do actions dismissed pursuant to section 1915A’s
screening procedure automatically count as strikes?

In Butler v. Department of Justice, No. 05-5171, also
decided today, we answer two additional questions: Do
dismissals for failure to prosecute count as strikes? When
should courts exercise their discretion to deny IFP privileges to
prisoners not barred by the PLRA’s three strikes provision?

To help us resolve these issues, we appointed amici for
Michael Thompson, Charles Thompson, and James Butler. The
Court is grateful for their service.
 7

II.

Before addressing the contested issues, we note several
areas of agreement. To begin with, both sides appear to agree
that actions containing at least one claim falling within none of
the three strike categories—such as Michael Thompson’s action
currently on appeal—do not count as strikes. We too agree.
Section 1915(g) 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. Cf. Lira
v. Herrera, 427 F.3d 1164, 1173 (9th Cir. 2005) (“[W]hile
‘action’ in the PLRA refers to the case as a whole, the statute
consistently uses the term in a manner that contemplates
dismissing the entire action only if the entire action fails to meet
statutory standards. When some claims are valid and others are
not, the usual procedural norm—that when a complaint has both
good and bad claims, only the bad claims are
‘dismissed,’—prevails.”) (citation omitted)).

Both sides also agree that the district court dismissals in the
two cases on appeal here could not possibly count as strikes
until the respective appeals are exhausted. Again, we agree.
Although section 1915(g) nowhere expressly states that
dismissals must be final to count as strikes, we think it fairly
implied. A contrary rule would, within those narrow set of cases
in which the third strike is appealed, effectively eliminate our
appellate function. Had Congress intended such an unusual
result, we expect it would have clearly said so. See Jennings v.
Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780
(10th Cir. 1999) (“Congress did not intend to ‘freeze out
meritorious claims or ossify district court errors.’” (quoting
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996)
(holding same))); see also Campbell v. Davenport Police Dep’t,
 8

471 F.3d 952, 953 (8th Cir. 2006) (same). But see Robinson v.
Powell, 297 F.3d 540, 541 (7th Cir. 2002) (holding that a
dismissal in the district court may be considered a third strike
before appeal, but only after the appellate court decides whether
“the district court might have erred,” an approach the
government here describes as “creat[ing] more work than is
appropriate for either the courts or the litigants to resolve a
request for IFP privileges,” Appellee’s Br. 24).

Both prisoners also concede—properly in our view—that
they have one strike. In each of those cases, the district court
expressly found the action to be frivolous. Michael A.
Thompson v. St. Louis County Police Dep’t, No. 93-1457 (E.D.
Mo. July 30, 1993); Charles E. Thompson v. DeKalb County,
No. 03-964 (N.D. Ga. July 3, 2003). In a third case, Charles
Thompson brought an appeal in the Eleventh Circuit, where his
IFP motion was assigned to a single appellate judge, who then
denied Thompson’s motion and declared the appeal frivolous.
In support, the judge cited 28 U.S.C. § 1915(e)(2)(B)(i), which
requires federal courts to dismiss actions and appeals brought by
prisoners if at any time they determine the action or appeal to be
frivolous. The judge then gave Charles Thompson thirty-five
days to file a motion for reconsideration, and when that time
passed without a response, the Eleventh Circuit dismissed his
appeal for want of prosecution.

Amicus for Charles Thompson argues that this appeal
should not count as a strike because the Eleventh Circuit
formally dismissed it for failure to prosecute, rather than for
frivolousness. This is hypertechnical. But for the judge
declaring it frivolous, Charles Thompson’s appeal would have
gone forward. We therefore regard this case as Charles
Thompson’s second strike.
 9

III.

We turn to the five questions presented by these motions.

Burdens of Production and Persuasion

With respect to one of Michael Thompson’s prior cases,
Michael A. Thompson v. Department of Justice, No. 96-1208
(D.D.C. May 31, 1996), the only record evidence about the case
(the PACER docket report) states that the action was dismissed
but provides no information as to the grounds of dismissal,
much less whether the judge regarded the action as frivolous.
Insisting this case should not count as a strike, amicus for
Michael Thompson argues that the defendant—which in this and
most federal court prisoner cases is a government body—bears
the burden of producing evidence capable of convincing the
court that a prior action or appeal was dismissed on one of
section 1915(g)’s enumerated grounds. The government
acknowledges that it bears the initial burden of producing
evidence of three dismissals, but contends that, once it has done
so, the mere fact of dismissal should raise a presumption that the
dismissal was a strike, unless the prisoner produces evidence to
the contrary.

The question whether to count an unexplained dismissal as
a strike may be thought of either in terms of the burden of
production (which party must produce evidence, such as an
order accompanying the judgment, showing the grounds of
dismissal) or in terms of an evidentiary presumption (whether
the mere fact of dismissal suffices to presume the dismissal
rested on section 1915(g) grounds). As a prominent treatise
observes, “‘presumption’ is the slipperiest member of the family
of legal terms, except its first cousin, ‘burden of proof.’”
KENNETH S. BROUN, ET AL., 2 MCCORMICK ON EVIDENCE § 342
at 495 (6th ed. 2006) (hereinafter “MCCORMICK”). Indeed,
 10

confusing these two slippery cousins for one another is hardly
surprising given that a presumption is most precisely defined as
“a rule that . . . shifts the burden of producing evidence.” Id. at
496. Because of this functional similarity, the considerations
that justify the creation of a presumption are virtually identical
to those that govern the allocation of the burden of production.
Id. § 343 at 500–01. We thus need not dwell on nomenclature,
so we will analyze this question in terms of the burden of
production.

In allocating the burden of production, we first look to the
statute itself. Where, as here, the statute is silent as to who bears
the burden, we “begin with the ordinary default rule that
plaintiffs bear the risk of failing to prove their claims.” Schaffer
v. Weast, 126 S. Ct. 528, 534 (2005). The default rule is,
however, just that, and we may depart from it when
considerations of fairness, convenience, or probability so
require. Id. (“The ordinary default rule, of course, admits of
exceptions.” (citing MCCORMICK (5th ed.) § 337 at 412–15,
which lists fairness, convenience, and the judicial estimate of the
probabilities as considerations that may justify removing the
burden of proof from the plaintiff)).

The default rule rests on two rationales, neither of which
has any force in the context of an IFP motion. First, as a matter
of formal consistency, the default rule reflects the longstanding
notion that the burden of proof follows the burden of pleading.
Hence, plaintiffs carry the burden on the elements of their cause
of action, and defendants typically, though not always, carry the
burden on affirmative defenses. This rationale does not apply in
the IFP context because in their motions for leave to file IFP
prisoners need not plead compliance with section 1915(g), as the
government has conceded. See Oral Arg. at 36:30. The PLRA
sets forth numerous pleading requirements for prisoners seeking
IFP status—that they provide affidavits attesting to their
 11

inability to pay, disclose their assets, and submit certified copies
of their trust fund account statements, 28 USC § 1915(a)(1),
(2)—but nowhere requires that prisoners plead compliance with
section 1915(g). For that reason, we agree with the Ninth
Circuit that had “Congress intended to require prisoners to
affirmatively show that they were not subject to the three strikes
provision, . . . it would have included that requirement in the list
of requirements prisoners must address in order to obtain IFP
status.” Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005).
Cf. Jones v. Bock, 127 S.Ct. 910, 919 (2007) (concluding that,
under the PLRA, prisoners need not plead exhaustion because,
among other reasons, “[t]he PLRA dealt extensively with the
subject of exhaustion, . . . but is silent on the issue whether
exhaustion must be pleaded by the plaintiff or is an affirmative
defense”).

The default rule is also frequently justified on fairness
grounds, i.e., foisting the burden on the defendant would be
unfair given that the defendant is not “asking any favors of the
court.” 21B CHARLES ALAN WRIGHT & KENNETH W. GRAHAM,
JR., FEDERAL PRACTICE AND PROCEDURE § 5122, at 394 (2d ed.
2005); see also MCCORMICK § 337 at 474. This concern over
fairness to the defendant likewise makes little sense in the
context of an IFP motion, which asks the court to exercise its
discretion to forego prepayment of its own filing fee. Unlike
defendants, courts can not be unfairly trapped by a failure of
proof. If the court believes that a prisoner plaintiff is an abusive
filer who has somehow evaded the three strikes provision due to
a failure of proof, it has discretion to deny IFP privileges, thus
preserving its own resources and those of the defendant.

Indeed, considerations of fairness, as well as convenience,
recommend against placing the burden of production on
prisoners seeking IFP status. Unlike government lawyers,
prisoners often lack the ability to gather and store the records
 12

necessary to show that past dismissals should not count as
strikes. See, e.g., Andrews, 398 F.3d at 1119–20 & n.9 (“In his
current facility . . . [the prisoner] represents that he is permitted
only six cubic feet of possessions—and that this not enough
space to maintain comprehensive files . . . [The prisoner] also
stated that he does not have access to PACER nor can he visit
clerks’ offices to obtain relevant orders.”). To deny IFP
privileges for potentially meritorious actions simply because the
prisoner is unable to produce records that either the government
defendant or the court itself could easily obtain seems quite
unfair.

Our sense of the relevant probabilities also counsels against
placing the burden of production on the prisoner. Although we
have no doubt that a large percentage of prisoner complaints are
dismissed on grounds of frivolousness, maliciousness, or failure
to state a claim, we also suspect that many prisoner suits are
dismissed for other defects, such as lack of jurisdiction
(including sovereign immunity and standing), qualified
immunity, and failure to exhaust administrative remedies, all of
which (as we shall explain below) typically do not count as
strikes. Further, given that section 1915A requires district
courts to undertake a pre-docketing review of prisoner
complaints and to dismiss any complaint found to be “frivolous,
malicious, or [that] fails to state a claim upon which relief may
be granted,” 28 U.S.C. § 1915A(b), courts would most likely
indicate whether those were the grounds for dismissal, thus
reducing the probability that an unexplained dismissal rests on
section 1915(g) grounds. This conjecture is borne out in the two
dismissals the prisoners concede are strikes and in the Eleventh
Circuit dismissal Charles Thompson claims is not a strike; in all
three cases, the courts’ finding of frivolousness appeared in the
PACER docket report. Given this pattern, we think it
improbable that cases dismissed for unexplained reasons were
in fact dismissed on section 1915(g) grounds.
 13

Finally, placing the burden on the party challenging the IFP
motion should reduce the number of unexplained dismissals that
are in fact strikes—thus minimizing for future courts the
problem we face here. Courts and government agencies have
both the incentive and experience to ensure that strikes are
identified as such at the time of dismissal. Counting
unexplained dismissals as non-strikes greatly increases the
chance that courts will, where appropriate, take the relatively
easy step of making clear that dismissals rest on section 1915(g)
grounds, if not to preserve their own resources, then because
government defendants will remind them to do so. By contrast,
prisoner plaintiffs—even were they to bear the burden on this
point in future litigation—are extremely unlikely to insist that
the court make the grounds for dismissal clear in the docket
report.

In sum, weighing considerations of fairness, convenience,
and probability, we hold that prisoners moving for IFP status
need not produce evidence showing the grounds for prior
dismissals. Such evidence must be produced either by the
defendant challenging the prisoner’s IFP status or, when readily
available, by the court itself. That said, we agree with the Ninth
and Seventh Circuits that once such evidence has been
produced, the ultimate burden of persuasion shifts back to the
prisoner to explain why the past dismissals should not count as
strikes. See Andrews, 398 F.3d at 1120; Evans v. Ill. Dep’t of
Corrections, 150 F.3d 810, 811–12 (7th Cir. 1998). Shifting the
burden back to the prisoner will be especially helpful in those
cases where the party challenging the IFP motion produces
evidence of three or more strikes by one or more litigants with
the movant’s name, but where it is unclear whether all the cases
involved the same individual. See, e.g., Butler v. Department of
Justice at *11–12. Presumably, prisoners are in the best position
to resolve that sort of question.
 14

How does all of this apply to Michael Thompson v.
Department of Justice? Recall that the only evidence of what
happened in the district court is a single PACER docket report
showing the case was dismissed, without a word on the grounds
for dismissal. Because the government produced no evidence
capable of showing that the district court dismissed the case on
section 1915(g) grounds, it does not count as a strike.

Appellate Affirmances of Strikes

In 1994, the Eastern District of Missouri dismissed Michael
Thompson’s suit against the St. Louis County Police
Department as “legally frivolous.” Michael Thompson then
appealed to the Eighth Circuit, which summarily affirmed
without explanation.

The government urges us to count an appellate affirmance
of a strike as a second strike. Section 1915(g)’s plain text,
however, speaks only of dismissals, not affirmances. The choice
of the word “dismiss” rather than “affirm” in relation to appeals
was unlikely an act of careless draftsmanship. Indeed, we think
it most plausibly understood as a reference to section 1915(e)(2),
which requires the court to “dismiss the case at any time if the
court determines that . . . the action or appeal . . . is frivolous or
malicious; [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2) (emphasis added); see also
Jennings, 175 F.3d at 780 (“Under the plain language of the
statute, only a dismissal may count as strike, not the affirmance
of an earlier decision to dismiss.”).

For several reasons, it makes sense for Congress to have
limited the statutory definition of strikes to dismissals rather
than affirmances. To begin with, an affirmance, even a
summary affirmance, does not necessarily imply an independent
judgment by the court of appeals that the appeal itself is
 15

frivolous, but only that the district court correctly dismissed the
complaint. Further, section 1915(e)(2) requires appellate courts
to dismiss all frivolous appeals. Thus, given section
1915(e)(2)’s mandatory language, a decision to affirm rather
than to dismiss implies a judgment that the appeal was not
frivolous. To be sure, we can easily imagine a case in which an
appellate court expressly states that an appeal was frivolous but
erroneously styles its disposition as an affirmance rather than as
a dismissal. In such a case, we expect the reviewing court
would regard the earlier disposition as a constructive dismissal
under section 1915(e)(2) and, therefore, as a strike. We face no
such situation here. All three appeals lost by Michael
Thompson were affirmances and in not one did the court state
that the appeal was frivolous, malicious, or failed to state a
claim. Thus, these three cases do not count as strikes.

Dismissals for Lack of Jurisdiction

In 1998, the Eastern District of Missouri dismissed Michael
A. Thompson v. Department of Justice, No. 98-0877 (E.D. Mo.
Aug. 3, 1998), for lack of jurisdiction. In its brief, the
government urges us to count this and other dismissals for lack
of jurisdiction as section 1915(g) strikes. Doing so, however,
would conflict with the statute’s text, which counts as a strike
only an action or appeal “dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief
may be granted.” 28 U.S.C. § 1915(g). Surely, there is nothing
necessarily frivolous or malicious in bringing an action for
which the court lacks jurisdiction. Equally clearly, 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).
 16

Although at oral argument, the government wisely
conceded that dismissals for lack of jurisdiction do not count as
strikes within the meaning of section 1915(g), Oral Arg. at
44:24, it nonetheless argued that because courts have discretion
to deny IFP privileges we should use that discretion to create a
per se rule that counts dismissals for lack of jurisdiction as
strikes. The government’s proposal suffers from two serious
flaws. First, because understanding federal court jurisdiction is
no mean feat even for trained lawyers, creating a rule that
mechanically treats dismissals for lack of jurisdiction as strikes
would pose a serious risk of penalizing prisoners proceeding in
good faith and with legitimate claims. Second, although we do
have discretion to deny IFP privileges even when the PLRA
does not so require, see 28 U.S.C. § 1915(a)(1); Ibrahim v.
District of Columbia, 208 F.3d 1032, 1036 (D.C. Cir. 2000), we
have no authority to pretend the PLRA says something it does
not. To follow the government’s suggested approach—using
our discretionary authority to intermingle judge-made
mandatory rules into the scheme created by Congress—would
not only obscure which branch of government made the decision
to deny a given prisoner IFP privileges, but would also leave the
impression that we are attempting to improve on Congress’s
handiwork. As the Supreme Court recently warned: “‘Whatever
temptation the statesmanship of policy-making might wisely
suggest,’ the judge’s job is to construe the statute—not to make
it better.” Jones, 127 S. Ct. at 921 (quoting Felix Frankfurter,
Some Reflections on the Reading of Statutes, 47 COLUM. L. REV.
527, 533 (1947)).

The more transparent approach, we believe, is first to
decide whether the PLRA requires us to deny IFP privileges and
then, if it does not, “to examine the number, content, frequency,
and disposition of [the prisoner’s] previous filings to determine
if there is a pattern of abusing the IFP privilege in his litigation
history.” Butler v. Department of Justice, No. 05-5171, at *10.
 17

Failure to Exhaust

In the case Michael Thompson seeks to appeal here, the
district court dismissed part of his complaint on a Rule 12(b)(6)
motion because he failed to allege he had exhausted his
administrative remedies under FOIA. Noting that in this and
other cases courts have sometimes found that a Rule 12(b)(6)
motion represents the appropriate procedural vehicle for
disposing of a case in which the plaintiff fails to exhaust, see,
e.g., Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir. 2003), the
government argues that actions defeated by a failure to exhaust
should generally count as strikes. Conversely, amicus for
Michael Thompson argues that such actions should never count
as strikes unless they are frivolous or malicious, pointing out
that another part of the PLRA draws a sharp distinction between
failure to exhaust and failure to state a claim. See 42 U.S.C.
§ 1997e(c)(2); see also Snider v. Melindez, 199 F.3d 108, 111
(2d Cir. 1999).

We think both sides reach too far. Because there is no
categorical answer to the question whether failure to exhaust
administrative remedies counts as failure to state a claim for
Rule 12(b)(6) purposes, the question likewise has no categorical
answer under section 1915(g), the language of which Congress
clearly modeled on Rule 12(b)(6). Accord Millsap v. Jefferson
County, No. 03-1235, 2003 WL 23021406 (8th Cir. Dec. 23,
2003) (per curiam). As the Supreme Court recently put it:
“Whether a particular ground for opposing a claim may be the
basis for dismissal for failure to state a claim depends on
whether the allegations in the complaint suffice to establish that
ground, not on the nature of the ground in the abstract.” Jones,
127 S. Ct. at 921.
 18

Courts frequently treat failure to exhaust as an affirmative
defense, see, e.g., id. at 919 (holding that the PLRA’s exhaustion
requirement for prisoner actions under 42 U.S.C. § 1983 is an
affirmative defense). But if a particular statute requires the
plaintiff to plead exhaustion and the plaintiff fails to do so, the
court may dismiss the complaint on a Rule 12(b)(6) motion.
Further, even when failure to exhaust is treated as an affirmative
defense, it may be invoked in a Rule 12(b)(6) motion if the
complaint somehow reveals the exhaustion defense on its face.
See id. at 921; see also 5B CHARLES ALAN WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE AND PROCEDURE §1357, at
708–30 (3d ed. 2004). When a court dismisses an unexhausted
complaint under Rule 12(b)(6), thus concluding that the
complaint fails to state a claim, section 1915(g)’s plain text
compels us to count that case as a strike. In the majority of
cases, however, in which failure to exhaust is treated as an
affirmative defense and appears nowhere on the face of the
complaint, the defense will not be raised on a Rule 12(b)(6)
motion and the dismissal will not count as a strike. Similarly, if
under the relevant statute (or the judicial interpretation thereof),
an exhaustion requirement is jurisdictional, then the court will
dismiss the unexhausted complaint pursuant to Rule 12(b)(1)
and the dismissal will not count as a strike.

In addition to our obligation to adhere to section 1915(g)’s
text, we are mindful that a driving purpose of the PLRA is to
preserve the resources of both the courts and the defendants in
prisoner litigation. Here, all agree that purpose is best
accomplished by a bright-line rule that avoids the need to
relitigate past cases. With regard to exhaustion, both section
1915(g)’s text and our desire for clarity point toward the same
rule: if the court dismisses an unexhausted complaint on a Rule
12(b)(6) motion or if it dismisses the complaint sua sponte and
expressly declares that the complaint fails to state a claim, the
dismissal counts as a strike. But if the court dismisses the
 19

complaint on some other procedural mechanism, such as a Rule
12(b)(1) motion or a motion for summary judgment, the
dismissal will not count as a strike. Although we have no
occasion to decide the issue, we expect a similar approach
should apply with respect to other grounds for dismissal (such
as statute of limitations defenses) that different statutes treat
alternately as affirmative defenses, elements of the plaintiff’s
cause of action, or jurisdictional prerequisites. Finally, it bears
repeating that IFP motions present no occasion for relitigating
final judgments. Thus, even though a court may believe that a
previous court erred by dismissing an unexhausted complaint
under Rule 12(b)(6) or by failing to do so, all that matters for the
purpose of counting strikes is what the earlier court actually did,
not what it ought to have done.

Because the district court in this case expressly stated that
Michael Thompson’s failure to plead exhaustion under FOIA
meant that he had failed to state a claim, we would ordinarily
count the dismissal as a strike. In this case, however, we will
not do so because, as noted above, (1) a dismissal does not
become a strike until an appeal thereof has been resolved or
waived, neither of which has yet occurred here, and (2) Michael
Thompson had another claim that the district court disposed of
on a Rule 12(b)(1) motion.

Section 1915A Dismissals

In the Veterans Service Board case, the district court
dismissed Charles Thompson’s complaint pursuant to its
mandatory section 1915A review, which requires courts to
“dismiss the complaint, or any portion of the complaint, if the
complaint . . . is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or . . . seeks monetary relief
from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b). The court, however, never said that it found the
 20

complaint to be frivolous, malicious, or that it failed to state a
claim. Instead, invoking separate authority to raise such issues
sua sponte, the court determined that one of Charles
Thompson’s two claims was time-barred and the other barred
for lack of standing.

The government urges us to treat all section 1915A
dismissals as presumptive strikes. We decline to create such a
presumption because, for a variety of reasons, a complaint that
is neither frivolous, malicious, nor fails to state a claim could
nonetheless be dismissed pursuant to section 1915A review. To
begin with, section 1915A requires dismissal of complaints that
“seek[] monetary relief from a defendant who is immune from
such relief”—a reason not covered by section 1915(g). Also,
courts may use the occasion of section 1915A review to dismiss
on grounds listed in neither section 1915A nor section
1915(g)—just what happened in the Veterans Service Board
case in which the court dismissed part of the complaint for lack
of jurisdiction. In any event, even were there a presumption that
section 1915A dismissals count as strikes, Charles Thompson
would have overcome that presumption by showing that one of
his claims was dismissed for lack of jurisdiction—a ground not
listed in section 1915(g).

IV.

In sum, we find that Michael Thompson has one strike and
Charles Thompson has two. Thus, section 1915(g) presents no
bar to our granting IFP privileges to either prisoner.

This leaves the question whether we should—as the
government urges—nonetheless exercise our discretion to deny
them IFP privileges. In making this determination, we “examine
the number, content, frequency, and disposition of [the
prisoner’s] previous filings to determine if there is a pattern of
 21

abusing the IFP privilege in his litigation history.” Butler v.
Department of Justice, No. 05-5171 at *10. As to the number
and frequency of filings, the record shows that prior to the
instant matters Michael Thompson filed six actions and appeals
over the course of roughly nine years and that Charles
Thompson filed three over the course of one year. This pattern
of filing falls substantially short of being abusive. See Butler, at
*11–12 (denying IFP privileges for a prisoner that had filed at
least twenty-five actions and appeals and at least eight over the
course of the previous four years). As to the content and
disposition of those filings, we again see nothing to suggest a
pattern of abuse. Apart from the three cases deemed
frivolous—for which the two prisoners will be held to account
under section 1915(g)—these relatively routine matters were
disposed of on a variety of grounds, none of which suggests
either a lack of good faith or a disregard for judicial resources.

V.

For the reasons stated above, we grant both motions for
leave to proceed IFP. To provide guidance for future cases we
summarize our holdings as follows:

• Section 1915(g) applies to actions and appeals, not
individual claims. 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.
• Section 1915(g) applies only to final dismissals.
Dismissals do not count as strikes until an appeal has
been either waived or resolved.
• The burden of producing evidence showing the
grounds for past dismissals falls on defendants
challenging IFP status. When such records are readily
available, the court will produce them itself. The
prisoner, however, bears the ultimate burden of
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persuasion.
• Appellate dismissals pursuant to section
1915(e)(2)(B)(i)-(ii) count as strikes. Appellate
affirmances do not count as strikes unless the court
expressly states that the appeal itself was frivolous,
malicious or failed to state a claim.
• Dismissals for lack of jurisdiction do not count as
strikes unless the court expressly states that the action
or appeal was frivolous or malicious.
• Dismissals for failure to exhaust administrative
remedies count as strikes only when they come on a
Rule 12(b)(6) motion or when the court dismisses the
complaint sua sponte and expressly states that it fails
to state a claim upon which relief may be granted.
• Dismissals pursuant to section 1915A screening do not
count as strikes unless based on one of the grounds
enumerated in section 1915(g).

So ordered.