Allen Garrett v. Phil Murphy

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

Nos. 20-2719 & 21-2810
____________

ALLEN DUPREE GARRETT
Appellant

v.

PHIL MURPHY,
Governor of the State of New Jersey;
REBECCA FRANCESCHINI,
Captain of Camden County Correctional Facility

____________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-20-cv-05235)
District Judge: Hon. Noel L. Hillman
____________

Submitted: September 22, 2021

Before: JORDAN, PORTER, and RENDELL,
Circuit Judges.

(Filed: October 29, 2021)
 ____________

Allen Dupree Garrett
Camden County Correctional Facility
330 Federal Street
Camden, NJ 08101

Pro Se Appellant

Grace Harter
Courtney Hinkle
Eva Schlitz
Georgetown University Law Center
Appellate Courts Immersion Clinic
600 New Jersey Avenue, N.W., Suite 312
Washington D.C., 20001

Madeline Meth
Brian S. Wolfman
Hannah Mullen
Georgetown University Law Center
Appellate Courts Immersion Clinic
600 New Jersey Avenue, N.W., Suite 312
Washington D.C., 20001

Court-Appointed Amicus Curiae

Andrew J. Bruck
Tasha M. Bradt
Deborah A. Hay
Agnes I. Rymer
Matthew J. Lynch
Office of Attorney General of New Jersey

2
Division of Criminal Justice
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625

Counsel for Appellees

____________

OPINION OF THE COURT
____________

PORTER, Circuit Judge.

Allen Dupree Garrett is a prisoner at the Camden
County Correctional Facility. He has commenced numerous
civil actions against prison officials, state officials, and the
United States. Garrett has so far avoided paying filing fees for
these lawsuits by proceeding in forma pauperis. All his law-
suits have been unsuccessful. Garrett appeals the dismissal of
his latest lawsuit to this Court, asking once more to proceed in
forma pauperis. Because Garrett has filed many fruitless law-
suits, this Court queried whether he should be allowed to avoid
prepaying filing fees under the three-strikes rule. 28 U.S.C.
§ 1915(g). Garrett’s eligibility to avoid prepaying fees turns in
part on whether suits barred by Heck v. Humphrey are properly
dismissed for failure to state a claim. 512 U.S. 477 (1994). Be-
cause this is an important question of law that has divided the
circuits, we appointed the Georgetown Law Appellate Courts
Immersion Clinic as amicus to address this and other issues
relevant to Garrett’s application. Amicus has ably discharged
its responsibilities, but we nevertheless conclude that Garrett

3
has struck out. A suit dismissed under Heck is dismissed for
failure to state a claim and counts as a strike. We will deny
Garrett’s motion to proceed in forma pauperis. To press his ap-
peal, Garrett must first pay the filing fee.

I

Garrett is a New Jersey state prisoner and frequent liti-
gant. Since his federal conviction in 2012, Garrett has brought
at least ten civil suits in federal court.

In his latest suit, Garrett sued the Governor of New Jer-
sey and another state official under 42 U.S.C. § 1983. App. 25–
26. Garrett’s complaint asserts two claims. First, that New Jer-
sey state officials are keeping him in pretrial detention with de-
liberate indifference to his imminent risk of contracting
COVID-19 and suffering severe physical injury, in violation of
his substantive due process rights. Second, that he has been
kept in prison for too long without a trial, in violation of his
right to a “speedy trial.” Garrett requests immediate release and
$100 million in damages.

At Garrett’s request, the District Court granted Garrett
in forma pauperis status. Under the Prison Litigation Reform
Act (“PLRA”), before serving the complaint, the District Court
had to screen and dismiss Garrett’s complaint sua sponte if it
is frivolous or malicious, fails to state a claim, or seeks mone-
tary relief from an immune defendant. 28 U.S.C.
§ 1915(e)(2)(B)(i)–(iii). In performing this preliminary screen-
ing duty, the District Court first addressed Garrett’s due pro-
cess claim and concluded that his complaint “is a string of non-
sequiturs and case citations, and there are no facts to support
any claim . . . for due process violations.” App. 8. The District
Court dismissed Garrett’s due process claim “without

4
prejudice” and with leave to amend “within 45 days” of the
order. App. 12. The District Court also dismissed Garrett’s
speedy trial claim but did so “with prejudice,” because the
claim was properly raised only “in a habeas corpus action.”
App. 11–12.

Nearly one hundred days later, Garrett appealed the Dis-
trict Court’s order. But it is well settled that “a dismissal with-
out prejudice and with leave to amend isn’t a final order.” We-
ber v. McGrogan, 939 F.3d 232, 237 (3d Cir. 2019). We there-
fore advised Garrett that we likely lacked jurisdiction over his
appeal. Garrett then elected to stand on his complaint and
sought a final judgment from the District Court to perfect his
right to appeal. App. 19. The District Court obliged, dismissing
Garrett’s complaint “with prejudice” in a final judgment order.
App. 18–21. But Garrett never filed a new or amended notice
of appeal in the District Court, and a notice of appeal must be
filed within thirty days “after the entry” of judgment, not be-
fore entry of judgment. 28 U.S.C. § 2107(a) (emphasis added);
Marshall v. Comm’r Pa. Dep’t of Corr., 840 F.3d 92, 97 (3d
Cir. 2016). This filing requirement is jurisdictional. Selkridge
v. United of Omaha Life Ins. Co., 360 F.3d 155, 161 (3d Cir.
2004).

II

We must first confirm our jurisdiction to hear this ap-
peal. The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343. We have jurisdiction over timely appeals
from the District Court’s “final” orders. 28 U.S.C. § 1291. But
Garrett appealed too early, and he appealed from the District
Court’s initial non-final dismissal order, not the final order dis-
missing his action.

5
 Garrett, however, has filed what we construe to be a sec-
ond notice of appeal in this Court. The document, labeled “2nd
Notice,” cites the docket number for the District Court pro-
ceeding, names the parties, and asserts Garrett’s “right” to
bring suit before this Court after a final judgment. ECF No. 20.
That is enough to constitute a notice of appeal under Rule 3(c)
and the liberal standards we apply to pro se litigants. Fed. R.
App. P. 3(c)(4). While Garrett mistakenly filed the second no-
tice of appeal in our Court, that is not fatal. Under Rule 4(d),
when a notice of appeal is “mistakenly filed in the court of ap-
peals, the clerk of that court must note on the notice the date
when it was received and send it to the district clerk. The notice
is then considered filed in the district court on the date so
noted.” Fed. R. App. P. 4(d). Garrett’s second notice was re-
ceived by this Court on October 5, 2020, less than thirty days
after the District Court’s judgment order, so it is timely. We
have transmitted Garrett’s second notice of appeal to the Dis-
trict Court, and we have consolidated the appeals.

We have jurisdiction over Garrett’s second notice of ap-
peal, so we will proceed to consider Garrett’s application for
in forma pauperis status.1

III

By the mid-1990s, Congress was concerned about the
“sharp rise in prisoner litigation in the federal courts.” Wood-
ford v. Ngo, 548 U.S. 81, 84 (2006). To address that concern,
Congress enacted reforms to “filter out the bad claims filed by
prisoners and facilitate consideration of the good.” Coleman v.
Tollefson, 575 U.S. 532, 535 (2015) (brackets and citation
omitted). One of those reforms was the PLRA’s three-strikes

1
We will dismiss Garrett’s premature appeal as moot.

6
rule. 28 U.S.C. § 1915(g). That rule prevents a prisoner2 from
suing in forma pauperis—that is, without first paying the filing
fee—if three or more civil actions or appeals filed by the pris-
oner have previously been “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 im-
minent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). After Garrett sought to proceed in forma pauperis,
we invoked the three-strikes rule. Garrett denied that he had
struck out and claimed to be under imminent danger of serious
physical harm.

We now proceed to count Garrett’s strikes, stopping if
we count to three. If Garrett has three strikes, we will consider
whether he is in imminent danger of serious physical injury. If
he is not, we will deny his application for in forma pauperis
status, and we will defer consideration of the merits until he
pays the filing fee.

A

We first address whether Garrett’s three dismissals un-
der Heck v. Humphrey count as strikes for “failure to state a
claim” under 28 U.S.C. § 1915(g). In Heck, the Supreme Court
held that a prisoner lacks a “cause of action” under § 1983 if
the prisoner is challenging an “allegedly unconstitutional con-
viction or imprisonment” before having the conviction or sen-
tence overturned. 512 U.S. at 486–87, 489. Analogizing the
claim to a “common-law cause of action for malicious prose-
cution,” the Supreme Court noted that “[o]ne element that must
be alleged and proved in a malicious prosecution action is

2
“Prisoner” includes pretrial detainees like Garrett. 28 U.S.C.
§ 1915(h).

7
termination of the prior criminal proceeding in favor of the ac-
cused.” Id. at 484 (emphasis added) (citing W. Keeton et al.,
Prosser and Keeton on Law of Torts 874 (5th ed. 1984)). To
prevent improper collateral attacks on convictions or sentences
through money damages actions, the Supreme Court applied an
analogous favorable-termination requirement to § 1983 ac-
tions. Id. at 484–87. The Court held that:

[W]hen a state prisoner seeks damages in a
§ 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint
must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has
already been invalidated.

Id. at 487. More precisely, the plaintiff seeking damages “must
prove that the conviction or sentence has been reversed on di-
rect appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of
habeas corpus.” Id. at 486–87. Heck’s favorable-termination
requirement applies to Bivens actions as well. Lora-Pena v.
FBI, 529 F.3d 503, 505 n.2 (3d Cir. 2008).

Garrett has three prior suits dismissed for failure to meet
Heck’s “favorable-termination” requirement.

First, in Garrett v. Mendez, No. 13-cv-5343 (D.N.J.
Aug. 14, 2014), Garrett brought a § 1983 action challenging
his prosecution, arrest, and conviction after he pleaded guilty
to violating 18 U.S.C. § 922(g)(1). The district court held that
Garrett’s action for money damages was barred under Heck

8
because his conviction had been upheld on appeal and collat-
eral review. See United States v. Garrett, 507 F. App’x 139 (3d
Cir. 2012). The court then concluded that “[Garrett]’s claims
are barred” and dismissed the complaint “for failing to state a
claim upon which relief may be granted.” Add. 5aa.

Second, in Garrett v. United States District Court for
the District of New Jersey, No. 17-cv-2924 (D.N.J. July 14,
2017), Garrett brought § 1983 and Bivens claims against his
former defense attorneys and his sentencing judge, seeking
money damages and immediate release. The district court de-
termined that all the defendants named by Garrett were im-
mune from suit under § 1983 and Bivens. The court in the al-
ternative also held that Garrett sought immediate release and
damages relief arising from his sentence even though it was
“clear” that his conviction had not been invalidated. The court
thus dismissed Garrett’s claims on the ground that Garrett had
pleaded no facts supporting a claim that the sentence had been
invalidated or called into question.

Third, in Garrett v. United States, No. 18-cv-14515
(D.N.J. Nov. 27, 2018), aff’d, 771 F. App’x 139 (3d Cir. 2019),
Garrett brought § 1983 and Bivens claims, this time against the
United States. The district court expressed confusion about
what Garrett was claiming but presumed “he [was] making
some sort of wrongful conviction and imprisonment allega-
tion.” Add. 24aa. The court held that Garrett’s claims were
barred by Heck because his conviction had been upheld on ap-
peal and collateral review and had not been invalidated. The
court dismissed Garrett’s complaint without prejudice, permit-
ting Garrett to file a new complaint in the event his conviction
is vacated.

9
 Amicus argues that none of these dismissals are strikes.
Amicus first argues that a dismissal under Heck is not on the
strike-counting ground of “failure to state a claim.”3 Amicus
next argues in the alternative that even if Heck dismissals are
strikes for failure to state a claim, the dismissals here are
“mixed” dismissals that cannot count as strikes under the
PLRA. Amicus finally argues that one of these three dismissals
does not count as a strike because the ground for dismissal is
unclear from the dismissal order. We will address each argu-
ment in turn.

1

Every year, pro se prisoners file over one thousand civil-
rights suits in this circuit. Integrated Database (IDB), Fed. Jud.
Ctr., https://perma.cc/2WMB-3MHX (last visited Oct. 7,
2021). Many of these suits are barred by Heck’s favorable-ter-
mination requirement, but courts must nevertheless use their
limited time to read the pleadings and dismiss them, delaying
justice in other cases. And yet, until now, we have never ad-
dressed in a precedential opinion whether a dismissal under
Heck counts as a PLRA strike for failure to state a claim.4

Several other circuits have addressed this issue. The
Fifth, Tenth, and D.C. Circuits have held that dismissals for

3
We exercise our independent judgment to analyze the
grounds for dismissal, but we do not sit as a court of appeals to
say what the district court should have done on the merits.
Fourstar v. Garden City Grp., Inc., 875 F.3d 1147, 1152–53 &
n.2 (D.C. Cir. 2017) (Kavanaugh, J.).
4
In an unpublished opinion, we have stated that Heck dismis-
sals are for failure to state a claim. See Ortiz v. N.J. State Po-
lice, 747 F. App’x 73, 77, 79 (3d Cir. 2018).

10
failure to meet Heck’s favorable-termination requirement
count as dismissals for failure to state a claim. Colvin v. Le-
Blanc, 2 F.4th 494, 499 (5th Cir. 2021); Smith v. Veterans Ad-
min., 636 F.3d 1306, 1311–12 (10th Cir. 2011); In re Jones,
652 F.3d 36, 38 (D.C. Cir. 2011). The Seventh and Ninth Cir-
cuits, however, have characterized Heck’s favorable-termina-
tion requirement as an affirmative defense subject to “waiver,”
analogous to an exhaustion requirement. Polzin v. Gage, 636
F.3d 834, 838 (7th Cir. 2011); Washington v. L.A. Cnty. Sher-
iff’s Dep’t, 833 F.3d 1048, 1056 (9th Cir. 2016). The First and
Eleventh Circuits have described Heck’s favorable-termination
requirement as both “jurisdictional” and as an “element” of a
claim for damages arising from a conviction or sentence under
§ 1983. Compare O’Brien v. Town of Bellingham, 943 F.3d
514, 529 (1st Cir. 2019), with Figueroa v. Rivera, 147 F.3d 77,
81 (1st Cir. 1998); see also Harrigan v. Metro Dade Police
Dep’t Station #4, 977 F.3d 1185, 1191 n.4 (11th Cir. 2020).
For our part, we recently held that Heck’s favorable-termina-
tion requirement “does not implicate a federal court’s jurisdic-
tion.” Vuyanich v. Smithton Borough, 5 F.4th 379, 389 (3d Cir.
2021).

We now join the Fifth, Tenth, and D.C. Circuits in hold-
ing that the dismissal of an action for failure to meet Heck’s
favorable-termination requirement counts as a PLRA strike for
failure to state a claim. We do so for a simple reason: Any other
rule is incompatible with Heck.

Heck is clear. Suits dismissed for failure to meet Heck’s
favorable-termination requirement are dismissed because the
plaintiff lacks a valid “cause of action” under § 1983, and a
cause of action in this context is synonymous with a “claim”
under the PLRA. 512 U.S. at 489; Black’s Law Dictionary 240
(7th ed. 1999). This is consistent with the Supreme Court’s

11
consistent interpretation of Heck’s favorable-termination re-
quirement as necessary to bring “a complete and present cause
of action” under § 1983. McDonough v. Smith, 139 S. Ct. 2149,
2158 (2019) (citation omitted).

It is also consistent with the tort of malicious prosecu-
tion Heck relied on. Favorable termination is (and always has
been) a necessary element of a malicious prosecution claim. In
1871, when § 1983 was enacted, favorable termination was a
necessary element of a malicious prosecution action. Thomas
M. Cooley, A Treatise on the Law of Torts 186 (Chi., Callaghan
& Co. ed., 1880). As the Supreme Court put it, “[t]o support an
action for a malicious criminal prosecution the plaintiff must
prove” that the “prosecution . . . finally terminated in his ac-
quittal.” Wheeler v. Nesbitt, 65 U.S. (24 How.) 544, 549
(1860). To this day, favorable termination remains an element
of malicious prosecution claims. “To prove malicious prosecu-
tion under § 1983,” we have held, “a plaintiff must show that
. . . the criminal proceeding ended in plaintiff’s favor.” Kossler
v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc) (brack-
ets omitted). Without favorable termination, a plaintiff lacks a
claim, and the complaint must be dismissed as premature for
failure to state a claim. See, e.g., Lanning v. City of Glens Falls,
908 F.3d 19, 29 (2d Cir. 2018); Nataros v. Superior Ct. of Mar-
icopa Cnty., 557 P.2d 1055, 1057 (Ariz. 1976). Dismissals for
failure to meet Heck’s favorable-termination element therefore
count as PLRA strikes for failure to state a claim.

Amicus presents two alternative arguments for why
Heck dismissals should not count as PLRA dismissals for fail-
ure to state a claim. We are unpersuaded.

Amicus first argues that “Heck dismissals implicate
whether or not the court has the authority to entertain the

12
action.” Amicus Br. 18. Accordingly, amicus argues that
courts must sua sponte dismiss Heck-barred claims for lack of
subject-matter jurisdiction at any state of the litigation, and not
for failure to state a claim. Id. at 17–21.

We reject this first argument because it is contrary to
our holding that Heck’s favorable-termination requirement
“does not implicate a federal court’s jurisdiction.” Vuyanich, 5
F.4th at 389. Amicus appears to suggest that Vuyanich is irrel-
evant because it “did not involve PLRA strike counting, and
the panel did not consider how Heck functions.” Amicus Reply
Br. 6. But that Vuyanich did not involve strike-counting does
not mean it is non-precedential. Vuyanich is a binding interpre-
tation of Heck in any application. So we will follow our prece-
dent as set forth in Vuyanich. 3d Cir. I.O.P. 9.1

We would, in any event, reject amicus’s “jurisdictional”
approach on the merits because it is unpersuasive. “It is firmly
established . . . that the absence of a valid (as opposed to argu-
able) cause of action does not implicate subject-matter juris-
diction.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
89 (1998). A suit barred by Heck’s favorable-termination re-
quirement fails to state a valid cause of action under § 1983, so
it falls under this “firmly established” rule and is not jurisdic-
tional. Id. We see no basis for converting Heck’s favorable-
termination rule into a “jurisdictional” rule. As the Supreme
Court has warned, “[j]urisdiction . . . is a word of many, too
many, meanings.” Id. at 90 (citation omitted). “The word ‘ju-
risdictional’ is generally reserved for prescriptions delineating
the classes of cases a court may entertain (subject-matter juris-
diction) and the persons over whom the court may exercise ad-
judicatory authority (personal jurisdiction).” Fort Bend County
v. Davis, 139 S. Ct. 1843, 1848 (2019). Heck’s favorable-ter-
mination requirement is an implied element of a claim, not a

13
rule of subject-matter or personal jurisdiction, so we decline to
treat Heck’s favorable-termination requirement as somehow
“jurisdictional.”

Amicus argues in the alternative that Heck’s favorable-
termination requirement is an affirmative defense that may be
waived by the defendant, not an element of a claim. The Ninth
Circuit has adopted this view, reasoning that “compliance with
Heck most closely resembles the mandatory administrative ex-
haustion of PLRA claims, which constitutes an affirmative de-
fense and not a pleading requirement.” Washington, 833 F.3d
at 1056. In Vuyanich, we cited the Ninth Circuit’s affirmative-
defense “approach” with approval, but we had no occasion to
decide whether Heck was an element of a claim for relief or an
affirmative defense. We held only that Heck was not “jurisdic-
tional.” Vuyanich, 5 F.4th at 389.

We now reject this alternative affirmative-defense un-
derstanding of Heck. The Court in Heck took pains to make
clear that it was not adding an exhaustion requirement to
§ 1983: “We do not engraft an exhaustion requirement upon
§ 1983, but rather deny the existence of a cause of action.”
Heck, 512 U.S. at 489. Nothing in Heck requires that the de-
fendant first plead the validity of the conviction in an answer.
Rather, Heck is clear that the favorable-termination require-
ment is a necessary element of the claim for relief under
§ 1983, not an exhaustion defense that must be anticipated by
the defendant’s answer. Id. at 483–87.

We are unpersuaded by the Ninth Circuit’s contrary rea-
soning. The Ninth Circuit defended its approach by noting that
§ 1983’s text does not say anything about a favorable-termina-
tion requirement. Washington, 833 F.3d at 1056. But that is a
substantive disagreement with Heck’s gloss on § 1983, not

14
about what Heck itself said. We have neither the power nor the
inclination to second-guess the Supreme Court’s reading of
§ 1983. Nor do we find the Ninth Circuit’s analogy to PLRA-
exhaustion persuasive. The more apt analogy is the one Heck
itself makes: a malicious-prosecution claim, which requires al-
leging and showing favorable termination to state a claim for
relief. 512 U.S. at 477, 483–84; see also Nataros, 557 P.2d at
1057.

Amicus adds that because Heck dismissals are usually
“without prejudice” to refiling if the favorable-termination re-
quirement is later met, Heck dismissals are necessarily not on
the merits and cannot relate “to a pleading deficiency.” Amicus
Reply Br. at 7. That is wrong. It is well settled that suits may
be dismissed without prejudice and for failure to state a claim
when the prematurity of suit “appears on the face of the plead-
ings” because one of the elements has not yet been met. Re-
statement (Second) of Judgments § 20(2) cmt. k (1982). For
example, when a malicious-prosecution “action is filed prior to
favorable termination of the proceedings, the action is prema-
ture and subject to dismissal.” Nataros, 557 P.2d at 1057. Dis-
missal is nonetheless for failure “to state a claim upon which
relief can be granted.” Id.5

5
Some courts routinely dismiss Heck-barred suits as frivolous.
See, e.g., Davis v. Kansas Dep’t of Corr., 507 F.3d 1246, 1249
(10th Cir. 2007); Kastner v. Texas, 332 F. App’x 980, 981 (5th
Cir. 2009) (per curiam). But none of Garrett’s suits were
explicitly dismissed as frivolous, so we do not decide whether
Heck-barred claims are frivolous.

15
 2

Amicus next argues that none of the three suits dis-
missed under Heck count as strikes because they involved
“mixed” dismissals. We disagree.

We recently held in Talley v. Wetzel that “mixed dismis-
sals are not strikes.” 15 F.4th 275 (3d Cir. 2021). A “mixed”
dismissal happens when some claims in the civil action are dis-
missed on strike-counting grounds but others are not. For ex-
ample, in Talley, the federal claims were dismissed for failure
to state a claim, but the pendent state-law claims were dis-
missed, we said, based on the district courts’ discretionary de-
cisions to not exercise supplemental jurisdiction over the state-
law claims. In such cases, because the entire civil action is not
dismissed on strike-counting grounds, the dismissal of the ac-
tion does not count as a PLRA strike.

The dismissals here do not involve supplemental state-
law claims as in Talley. Instead, amicus argues that the actions
here are “mixed” because they “included claims that belonged
in a habeas petition, which were not dismissed for failure to
state a claim.” Amicus Reply Br. 13. That is incorrect. Garrett’s
suits involved only civil-rights claims for injunctive relief or
money damages barred by Supreme Court precedent, not ha-
beas claims. But even if we construe Garrett’s claims for in-
junctive relief as habeas claims, the dismissal of habeas claims
does not make the dismissals “mixed,” because habeas claims
are not part of a civil action for PLRA purposes.

In Preiser v. Rodriguez, the Supreme Court held that
“when a state prisoner is challenging the very fact or duration
of his physical imprisonment, and the relief he seeks is a deter-
mination that he is entitled to immediate release or a speedier

16
release from that imprisonment, his sole federal remedy is a
writ of habeas corpus.” 411 U.S. 475, 500 (1973). Allowing
§ 1983 suits for injunctive relief available in habeas, the Su-
preme Court reasoned, would nullify the exhaustion require-
ments of federal habeas, and allow direct collateral attacks in
federal court. Id. at 477, 489–90. Just as in Heck, whenever a
plaintiff pleads a violation of § 1983 and effectively seeks ha-
beas relief, the plaintiff fails to state a § 1983 claim. Instead,
the prisoner’s only federal remedy is through a writ of habeas
corpus after exhausting state remedies.

While two of Garrett’s dismissals involved claims for
injunctive relief, none of the suits included actual habeas
claims.

Garrett’s first Heck dismissal sought only money dam-
ages and an “apology” from the defendants, not immediate or
speedier-release relief sounding in habeas. The district court
noted in passing that “to the extent Plaintiff seeks to challenge
the propriety of his stop, arrest, prosecution and conviction, he
is attempting to bring a second or successive motion for habeas
relief, which is barred except in certain narrow circumstances
not present here.” Add. 5aa. But that hypothetical speculation
is not enough for us to conclude that the district court dismissed
any claims for injunctive relief, let alone actual habeas claims.

In Garrett’s second Heck dismissal, the district court ex-
pressly refused to construe Garrett’s claim seeking immediate
release as a habeas action, because Garrett already had two sep-
arate pending actions for habeas relief. As a strike-counting
court, we will not second-guess that refusal.

Garrett’s third Heck dismissal also includes a claim for
immediate release. But the court noted that Garrett had sought

17
to stay the civil-rights action until his separate pending habeas
action was adjudicated, showing that Garrett understood he
was not bringing habeas claims.

That does not end the matter. The Ninth Circuit has held
that in § 1983 suits barred by both Heck and Preiser, a Preiser-
barred claim for injunctive relief “sounds only in habeas.”
Washington, 833 F.3d at 1057. And since habeas proceedings
are not “civil actions” under the PLRA, an action that dismisses
injunctive-relief claims sounding in habeas is, according to the
Ninth Circuit, never a dismissal of the entire action on strike-
counting grounds. Id. If we applied the Ninth Circuit’s ap-
proach here, Garrett’s Preiser dismissals in the second and
third actions would insulate his otherwise strike-worthy Heck
dismissals from counting as PLRA strikes.

The Fifth Circuit, however, has reached the opposite
conclusion. In the Fifth Circuit, “when a single complaint in-
cludes both habeas claims and civil rights claims, the district
court should separate the claims and decide the section 1983
claims.” Brown v. Megg, 857 F.3d 287, 291 (5th Cir. 2017).
The claims are really “two separate actions.” Id. And while
§ 1915(g) does not apply to the habeas action, it does apply to
the § 1983 action. Id. “Because the civil rights portion of a
complaint raising both habeas and section 1983 claims is the
only ‘civil action’ to which section 1915(g) applies, it makes
sense to impose a strike when all the section 1983 claims in
such an action are dismissed for frivolousness.” Id. (quoting 28
U.S.C. § 1915(g)). Because they are not the same “civil action”
for the PLRA’s strike-counting purposes, the dismissal of
Preiser-barred claims does not make a dismissal “mixed.” Id.

We agree with the premise shared by both circuits: ha-
beas proceedings are not “civil actions” under the PLRA’s

18
three-strikes provision. This conclusion is required by prece-
dent. In Santana v. United States, we held that “civil action” as
used in a neighboring PLRA provision—§ 1915(b), requiring
prisoners to pay court-filing fees and allowing payment in in-
stallments—does not include habeas proceedings. 98 F.3d 752,
754, 756 (3d Cir. 1996). We reasoned in part that “[t]o hold
that the PLRA was applicable to habeas corpus actions would
prohibit a prisoner who had filed three groundless civil suits
from seeking habeas relief from unlawful imprisonment. . . .
This is a result that we cannot countenance.” Id. at 756.

Santana compels us to conclude that the three-strikes
provision does not include habeas claims. Generally, “a statu-
tory phrase must have a fixed meaning across a statute.” Lomax
v. Ortiz-Marquez, 140 S. Ct. 1721, 1725 (2020). Applying San-
tana and the fixed-meaning canon, we now conclude that
§ 1915(g), the three-strikes provision, does not apply to habeas
proceedings because they are not PLRA civil actions.6

While habeas proceedings are not civil actions under the
PLRA, we reject the Ninth Circuit’s conclusion that dismissals
under both Heck and Preiser are therefore “mixed” dismissals
that do not count as strikes. The Ninth Circuit’s rule would
have us say that Preiser-barred claims are not part of a PLRA

6
Santana’s holding applies to habeas petitions filed under ei-
ther 28 U.S.C. § 2254, for prisoners under state custody, or
under § 2255, for prisoners (like Garrett) under federal cus-
tody. Santana v. United States, 98 F.3d 752, 754, 756 (3d Cir.
1996). The case for holding that § 2255 proceedings are not
PLRA “civil actions” is even stronger because unlike § 2254
proceedings, § 2255 proceedings are a “continuation of a de-
fendant’s federal criminal case.” United States v. Thomas,
713 F.3d 165, 169 (3d Cir. 2013).

19
“civil action,” only to turn around and assume they are part of
the “civil action” for purposes of determining whether a dis-
missal is “mixed” and does not count as a PLRA strike. We
decline to adopt that inconsistent approach to characterizing
the scope of a PLRA “civil action.” We instead hold, consistent
with the Fifth Circuit, that because habeas claims are not part
of a civil action under the PLRA, they are also not part of the
civil action when deciding whether a dismissal was mixed un-
der the PLRA.

Applying that rule to Garrett’s dismissals, we conclude
that even if Garrett’s Preiser-barred claims are necessarily ha-
beas claims, that legal fiction would not help Garrett. Habeas
claims are not part of a PLRA civil action, so the dismissal of
habeas claims, real or imagined, never makes a Heck dismissal
“mixed.” We therefore reject amicus’s argument that Garrett’s
dismissals are “mixed” dismissals that do not count as strikes
under Talley.

3

Amicus finally argues that Garrett’s second Heck dis-
missal does not count as a strike because the ground for dis-
missal was unclear. Amicus asserts that to count as a strike, the
order (instead of the accompanying opinion) must “explicitly”
state that action was dismissed on a strike-counting ground.
New Jersey concedes that the second Heck dismissal does not
count as a strike, but it does so because in its view neither the
order nor the accompanying opinion explicitly say that the dis-
missal was on strike-counting grounds.

Amicus and New Jersey rely on our opinion in Byrd v.
Shannon. 715 F.3d 117, 126 (3d Cir. 2013). There, we adopted
the following rule:

20
 [A] strike under § 1915(g) will accrue only if the
entire action or appeal is (1) dismissed explicitly
because it is “frivolous,” “malicious,” or “fails to
state a claim” or (2) dismissed pursuant to a stat-
utory provision or rule that is limited solely to dis-
missals for such reasons, including (but not nec-
essarily limited to) 28 U.S.C. §§ 1915A(b)(1),
1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule
12(b)(6) of the Federal Rules of Civil Procedure.

Id. at 126. We see nothing in Byrd or the PLRA that would
support amicus’s contention that the order itself must explicitly
state strike-counting grounds for dismissal. In Byrd, we ana-
lyzed the text of the opinion, not the order, so Byrd disproves
amicus’s argument. Id. at 125 (citation omitted). And we de-
cline to invent this rule because it would allow many clear
strikes to go uncounted. Amicus urges us to look to opinions
and not just orders to avoid counting an improper strike: “It is
critical that courts not rely solely on the language of a dismissal
order when issuing a strike because accompanying opinions
routinely offer context missing from dismissal orders.” Amicus
Reply Br. 11. As amicus points out, “dismissing courts are not
focused on strike counting when drafting dismissal orders.” Id.
at 12. Those weighty reasons suggest we should look at opin-
ions and not just orders both to avoid false positives (counting
an improper strike), as well as false negatives (not counting
proper strikes). We reject amicus’s argument that prisoners
must get a free pass if strike-counting grounds are not explic-
itly stated in the order.

Examining the dismissal opinion, as we did in Byrd, we
are compelled to disagree with both amicus and New Jersey.
While the opinion does not include the magic words “dis-
missed for failure to state a claim,” we do not read Byrd to

21
articulate such a demanding standard. Under Byrd, the dismis-
sal counts as a strike if the entire action was “dismissed pursu-
ant to a statutory provision or rule that is limited solely to dis-
missals for such reasons.” Byrd, 715 F.3d at 126. Here, the
court’s opinion explicitly dismissed the claims pursuant to
“1915(e)(2)(B)(ii)” and “Federal Rule of Civil Procedure
12(b)(6),” Add. 14aa, both of which are limited to dismissals
for failure to state a claim, a strike-counting ground. We have
no doubt the court applied that standard when dismissing the
entire action on both facially apparent sovereign immunity
grounds and as entirely blocked by Preiser and Heck. Thus, we
easily conclude that this second dismissal counts as a strike.

Because we have counted to three, Garrett has struck
out, and we need not keep counting.

B

We next consider whether Garrett has shown that he is
“under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). He has not.

Garrett argues that COVID-19 is rampant in New Jersey
jails, that New Jersey is not following proper guidelines, and
that he faces a serious risk of death or injury if he gets sick with
COVID-19 given his poor health. But Garrett has since filed
medical records showing that he had COVID-19 in December
of 2020. Garrett’s risk of getting sick with COVID-19 is there-
fore no longer “imminent”—it has already occurred. Protected
by natural immunity, Garrett has not shown that continued ex-
posure to COVID-19 still puts him at imminent risk of serious

22
physical injury.7 We also take judicial notice that, to the extent
Garrett believes that he remains at serious risk of physical in-
jury or death, effective COVID-19 vaccines are widely availa-
ble, and Garrett has not shown he lacks proper access to the
vaccine. Cf. United States v. Burgard, 857 F. App’x 254, 255
(7th Cir. 2021) (“widespread availability of the COVID-19
vaccine . . . eliminates” need for compassionate release).

Garrett has not met his burden of showing imminent
threat of serious physical injury.

* * *

Because we conclude that Garrett has struck out and has
not shown an imminent risk of death or serious physical injury,
we will deny his application for in forma pauperis status. We
will defer consideration of the merits of Garrett’s appeal until
he pays his filing fee. Should Garrett pay the filling fee, we will
retain jurisdiction to decide the merits of his appeal.

If Garrett fails to pay his filing fee within fourteen days
of the docketing of this decision, we will direct the clerk to

7
See, e.g., Sivan Gazit et al., Comparing SARS-CoV-2 Natu-
ral Immunity to Vaccine-Induced Immunity: Reinfections Ver-
sus Breakthrough Infections, MEDRXIV (Aug. 25, 2021),
https://perma.cc/D9VT-ZMMR (last visited Oct. 7, 2021); Al-
ice Cho et al., Anti-SARS-Cov-2 Receptor Binding Domain
Antibody Evolution After Mrna Vaccination, Nature (Oct. 7,
2021), https://perma.cc/KVP7-JEB4; Nabin K. Shrestha et al.,
Necessity of COVID-19 Vaccination In Previously Infected
Individuals, MEDRXIV (June 5, 2021),
https://perma.cc/MCG2-3N33 (last visited Oct. 7, 2021).

23
close his appeal without further notice. See Fed. R. App. P.
3(a)(2); 3rd Cir. L.A.R. 3.3(a), 107.1(a) (2011).

24