Case: 18-11034 Document: 00515261555 Page: 1 Date Filed: 01/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 7, 2020
No. 18-11034
Lyle W. Cayce
Clerk
KRISS RAY CAMP,
Plaintiff−Appellant,
v.
ELIZABETH MCGILL, County Clerk, Tom Green County; CHRISTINA
UBANDO, Chief Deputy Clerk, Tom Green County; DEBORA RIDER,
Deputy Clerk, Tom Green County; THELMA SANCHEZ, Deputy Clerk, Tom
Green County,
Defendants−Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:18-CV-81
Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.
PER CURIAM:*
Kriss Ray Camp, Texas prisoner # 140210, filed a 42 U.S.C. § 1983 civil
rights action alleging that the defendants, employees of the Tom Green County
Clerk’s Office, fabricated and altered trial documents relating to his state
prosecution. The district court concluded that three of Camp’s previous civil
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 18-11034
rights actions had been dismissed as frivolous or for failure to state a claim. It
dismissed the action under 28 U.S.C. § 1915(g)’s “three strikes” provision,
which bars a prisoner from future action in forma pauperis (IFP). Camp filed
a timely Rule 59 motion to alter or amend the judgment, which the district
court denied. 1 Camp appealed both the dismissal of his action and the denial
of his Rule 59 motion. Camp also moved to proceed IFP on appeal. The district
court denied IFP status, certifying that Camp’s appeal was not taken in good
faith. We granted IFP status, determining that Camp’s contention that the
district court had erred in dismissing his claims under § 1915(g) was
nonfrivolous.
In this appeal, Camp claims the district court wrongly dismissed his civil
action under § 1915(g) based on an erroneous finding that his prior § 1983
action in Camp v. Dobbs 2 was entirely dismissed as frivolous, malicious, or for
failure to state a claim. Under § 1915(g), a prisoner is precluded from bringing
a proceeding IFP if three or more of his prior civil actions brought while
incarcerated or detained were “dismissed on the grounds that [they were]
frivolous, malicious, or fail[ed] to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical
injury.” 3 Importantly, “a strike does not issue when only some claims are
dismissed on section 1915(g) grounds.” 4 Rather, the entire case must have
been dismissed for being frivolous, malicious, or failing to state a claim for
which relief could be granted. 5 Although our court has not expressly
established a standard of review for a district court’s conclusion that a prior
dismissal counts as a strike for purposes of § 1915(g), we review other
1 See FED. R. CIV. P. 59(e).
2 No. 2:11-CV-0140, 2012 WL 75669 (N.D. Tex. Jan. 10, 2012).
3 28 U.S.C. § 1915(g).
4 Brown v. Megg, 857 F.3d 287, 288 (5th Cir. 2017).
5 Id. at 290-92.
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applications of this section de novo. 6 Whether dismissal constitutes a strike is
a purely legal question, so we join our sister circuits in reviewing the issue de
novo. 7
Camp argues that the dismissal of his prior action, Camp v. Dobbs,
should not count as a strike because the entire case was not dismissed as
frivolous, malicious, or for failure to state a claim. In that case, Camp raised
various claims relating to a criminal conviction and a related divorce
proceeding. Camp later amended his complaint to include more claims and
join more defendants. The district court treated Camp’s new claims as an
amendment to his original complaint and found them—as well as his original
claims—to be frivolous or to fail to state a claim for which relief could be
granted. 8
The question we must address is whether the district court dismissed
Camp’s entire action for one of the reasons listed in § 1915(g) or whether it was
only partially dismissed for those reasons. The confusion stems from the
language at the end of the district court’s order. That order dismissed “the
Civil Rights Complaint” with prejudice as frivolous and for failure to state a
claim upon which relief can be granted. 9 But the court separately noted that
6 See Jackson v. Johnson, 475 F.3d 261, 265 (5th Cir. 2007) (per curiam) (reviewing de
novo whether the PLRA applied to a former prisoner based on his status at the time of filing);
see also Ruiz v. Estelle, 161 F.3d 814, 819 (5th Cir. 1998) (reviewing de novo whether the
PLRA provided legislators the right to intervene), abrogated on other grounds by Town of
Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017).
7 See Ladeairous v. Sessions, 884 F.3d 1172, 1174 (D.C. Cir. 2018) (three strikes
dismissal reviewed de novo); Mitchell v. Nobles, 873 F.3d 869, 873 (11th Cir. 2017) (same);
Smith v. Veterans Admin., 636 F.3d 1306, 1309 (10th Cir. 2011) (same); Tolbert v. Stevenson,
635 F.3d 646, 649 (4th Cir. 2011) (same); Tafari v. Hues, 473 F.3d 440, 442 (2d Cir. 2007)
(same); Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007) (same); Andrews v. King, 398 F.3d
1113, 1118 (9th Cir. 2005) (same); Evans v. Illinois Dept. of Corr., 150 F.3d 810, 811 (7th Cir.
1998) (same).
8 Camp v. Dobbs, No. 2:11-CV-0140, 2012 WL 75669, at *1-5 (N.D. Tex. Jan. 10, 2012).
9 Id. at *5.
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it dismissed without prejudice Camp’s “claim of inadequate food while in jail.” 10
It is unclear from this portion of the order whether the district court intended
to distinguish the inadequate food claim from the “Civil Rights Complaint.”
Looking to the remainder of the order, in addressing the inadequate food
claim, the district court noted that Camp’s “vague and global allegations are
not sufficient to state a claim on which relief can be granted.” 11 The district
court then noted that, “[m]oreover, this claim is not properly joined with the
claims originally asserted in this cause,” and admonished that “[Camp] may
not avoid the three-strike provision of the Prison Litigation Reform Act by
pursuing a multitude of improperly-joined claims in a single cause.” 12
This language indicates that the inadequate food claim was dismissed
on two independent grounds, one of which was for failure to state a claim.
Looking to the order as a whole, we read the district court as referring to the
entire action when it dismissed “the Civil Rights Complaint” as frivolous and
for failure to state a claim and as merely stating an additional reason for
dismissing the inadequate food claim. Section 1915(g) is intended to strike a
“balance between deterring frivolous filings while maintaining access to the
courts for facially valid claims.” 13 In a case such as this, where the district
court determined that the claim was not facially valid, it is proper to impose a
strike.
* * *
The district court’s judgment is AFFIRMED. Camp’s motions for
appointment of counsel, for an appeal conference and oral argument, for a
10 Id.
11 Id. at *4.
12 Id. (emphasis added).
13 Brown v. Megg, 857 F.3d 287, 291 (5th Cir. 2017).
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ruling on his motion to appoint counsel, and for the court to take judicial notice
of case records are DENIED.
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