United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 19, 2007 Decided June 26, 2007
No. 05-5171
JAMES A. BUTLER,
APPELLANT
v.
DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 05cv00288)
Jamie W. Campbell, Student Counsel, argued the cause
as amicus curiae in support of appellant. With her on the briefs
were Steven H. Goldblatt, appointed by the court, and David J.
Arkush, Supervising Attorney.
Alan Burch, Assistant U.S. Attorney, argued the cause
for appellee. 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.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Appellant James A. Butler, a
federal prisoner, seeks leave to file in forma pauperis (“IFP”) on
an appeal before this Court. He has on at least five prior
occasions brought appeals before this Court that were dismissed
for failure to prosecute. The question before us is whether those
dismissals are strikes under the Prison Litigation Reform Act
(“PLRA” or the “Act”). We hold that they are not, but
nonetheless exercise our supervisory discretion to deny Butler
IFP status.
I.
In 1996, Congress passed the Prison Litigation Reform
Act, Pub. L. No. 104-134 §§ 801-10, 110 Stat. 1321 (1996), to
“help bring relief to a civil justice system overburdened by
frivolous prisoner lawsuits,” 141 CONG. REC. S14408-01,
*S14418 (daily ed. Sept. 27, 1995) (statement of Sen. Hatch),
and to “reduce the number of nonmeritorious actions brought by
prisoners for whom litigation was a costless pastime,” Ibrahim
v. District of Columbia, 208 F.3d 1032, 1036 (D.C. Cir. 2000).
The PLRA imposed several limitations on a prisoner’s ability to
file lawsuits and pursue appeals in federal courts. One of those
limitations,1 colloquially known as the “three strikes” provision,
prohibits a prisoner from proceeding in forma pauperis if he has
had three or more actions or appeals in federal courts dismissed
as frivolous, malicious, or for failure to state a claim, unless the
1
Other limitations include an exhaustion requirement for
§ 1983 claims, see 42 U.S.C. § 1997e(a), a screening procedure by
which courts dismiss before docketing complaints that do not meet
certain criteria, see 28 U.S.C. § 1915A, and a requirement that
prisoners pay the entire filing fee over time (previously when IFP
status was granted the fee was waived), see 28 U.S.C. § 1915(b).
3
prisoner faces imminent danger of serious physical harm. 28
U.S.C. § 1915(g).2
Butler, who is serving a life sentence, filed a claim under
the Freedom of Information Act (“FOIA”) in district court
seeking records related to his conviction from the Executive
Office of the United States Attorneys and moved for leave to file
IFP. The district court denied his motion because it found that
Butler had incurred at least three strikes under § 1915(g) and
dismissed the case without prejudice to his refiling upon
payment of the filing fee.
Butler appealed and filed a motion for leave to proceed
IFP in this Court. We ordered the government to respond to his
motion and to address whether Butler had incurred three strikes
under § 1915(g). We also appointed amicus curiae to argue in
support of Butler’s position. The government responded by
arguing that Butler had three appeals pending before this Court
in which he was either proceeding or attempting to proceed IFP,3
2
28 U.S.C. § 1915(g) provides in full:
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.
3
Butler v. DOJ, No. 05-5022 (D.C. Cir. filed Jan. 24, 2005);
Butler v. DOJ, No. 05-5073 (D.C. Cir. filed Mar. 3, 2005); Butler v.
DOJ, No. 05-5171 (D.C. Cir. Apr. 22, 2005).
4
and that we had dismissed for failure to prosecute at least five
separate appeals4 in which he was proceeding IFP. The
government argues that these five dismissals are strikes under
§ 1915(g) and that Butler is therefore barred from proceeding
IFP in this appeal. Amicus asserts that dismissals for failure to
prosecute are not strikes under § 1915(g) and urges us to allow
Butler to proceed IFP. Because Butler does not claim that he is
“under imminent danger of serious physical injury,” the only
question before us is whether a dismissal for failure to prosecute
an appeal is a strike, and if not, whether we should nevertheless
exercise our discretion to deny Butler IFP status.5
II.
In determining whether a dismissal for failure to
prosecute an appeal is a strike under the PLRA, we begin, as we
must, with the language of the statute. United States v.
Braxtonbrown-Smith, 278 F.3d 1348, 1352 (D.C. Cir. 2002) (“In
construing a statute, the court begins with the plain language of
the statute.”). By its own terms, the PLRA counts as a strike
only an action or appeal that is “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). A dismissal for
4
Butler v. IRS, No. 04-5332 (D.C. Cir. Aug. 5, 2005); Butler
v. Bureau of Prisons, No. 04-5231 (D.C. Cir. Feb. 23, 2005); Butler
v. IRS, No. 04-5091 (D.C. Cir. Jan. 6, 2005); Butler v. DOJ, No. 99-
5341 (D.C. Cir. Nov. 19, 1999); Butler v. DOJ, No. 97-5308 (D.C.
Cir. July 15, 1998).
5
In Thompson v. DEA, No. 04-5450, also decided today, we
address several related questions including whether prisoners moving
to proceed IFP bear the burden of proving their eligibility for IFP
status and whether dismissals for various other reasons constitute
strikes.
5
failure to prosecute is clearly not a dismissal for “failure to state
a claim on which relief may be granted”—a phrase that tracks
the language of Federal Rule of Civil Procedure 12(b)(6) and is
not implicated here. Nor is it a dismissal “on the grounds that
it is frivolous,” a dismissal based on the utter lack of merit of an
action or appeal. See Tafari v. Hues, 473 F.3d 440, 442 (2d Cir.
2007) (“A frivolous action advances ‘inarguable legal
conclusion[s]’ or ‘fanciful factual allegation[s].’ Thus, the term
‘frivolous’ refers to the ultimate merits of the case.”) (alterations
original, citation omitted). By contrast, a dismissal for failure to
prosecute does not rest on the merits of a claim.6 Mathes v.
Comm’r of Internal Revenue, 788 F.2d 33, 35 (D.C. Cir. 1986)
(“The substantive merits of a claim are of course irrelevant to
the propriety of a dismissal for failure to prosecute . . . .”); see
also Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002)
(“Public policy favors disposition of cases on the merits. Thus,
this factor weighs against dismissal [for failure to prosecute].”);
Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (noting
the strong predisposition to resolve cases on the merits rather
than dismissing for failure to prosecute).
That leaves us with the question whether a dismissal for
failure to prosecute fits appropriately within the statutory
category of a dismissal “on the ground[] that it is . . .
6
Federal Rule of Civil Procedure Rule 41(b) also obliquely
recognizes this distinction by providing that a dismissal for failure to
prosecute “operates as an adjudication upon the merits.” FRCP 41(b)
(emphasis added). The phrase “operates as” indicates that a dismissal
for failure to prosecute is not, in fact, a decision on the merits of the
claim, but rather functions as such for the purposes of claim
preclusion. See 18A CHARLES ALAN WRIGHT, ARTHUR R. MILLER &
EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4440 (2d
ed. 2002).
6
malicious.”7 We hold that it does not. “A case is malicious if it
was filed with the intention or desire to harm another.” Tafari,
473 F.3d at 442 (parenthetically quoting Andrews v. King, 398
F.3d 1113, 1121 (9th Cir. 2005)). Although it is possible that an
action or an appeal dismissed for failure to prosecute may have
been filed with the sole intent to harm another, that need not be
the case. As amicus correctly points out, there are non-
malicious reasons why a prisoner may fail to prosecute a matter,
including transfer to another facility and sickness. See Amicus
Reply Br. at 18.
The government nonetheless urges us to exercise our
discretionary authority to create a per se rule that would count
all dismissals for failure to prosecute as strikes. Oral Arg. at 42-
46. In Neitzke v. Williams, 490 U.S. 319 (1989), the Supreme
Court rejected a similar proposal. At the time, the in forma
pauperis statute authorized “federal courts to dismiss a claim
filed in forma pauperis ‘if the allegation of poverty is untrue, or
if satisfied that the action is frivolous or malicious.’” 490 U.S.
at 324 (quoting 28 U.S.C. § 1915(d)(1988), amended by Pub. L.
No. 104-134 § 804(a)(2), 110 Stat. 1321 (1996)). Several prison
officials petitioned the Supreme Court to adopt “a per se
reading” of the in forma pauperis statute, categorizing all
complaints dismissed for failure to state a claim under Rule
12(b)(6) as “frivolous” under § 1915(d). Id. at 325. The Court
acknowledged that there were good policy reasons behind
adopting the petitioners’ approach, but nonetheless refused to
7
The government’s brief appeared to argue as much. See
Appellee’s Br. at 23 (“There is something inherently abusive, and
therefore, malicious about” a prisoner bringing suit and then
abandoning his case.) (emphasis added). However, at oral argument
the government clarified its position, conceding that dismissals for
failure to prosecute are not strikes within the meaning of § 1915(g).
Oral Arg. at 46:3-5.
7
adopt it because the Court’s “role . . . is not to make policy, but
to interpret a statute,” and “as a matter of statutory construction
[the petitioners’ proposal] is untenable.” Id. at 326. The Court
therefore concluded that complaints “filed in forma pauperis
[are] not automatically frivolous within the meaning of
§ 1915(d) because [they] fail[] to state a claim.” Id. at 331.
The government’s proposal here suffers from a similar
defect. Had Congress wanted to include dismissals for failure
to prosecute among the strikes listed in § 1915(g), it could have
done so. See, e.g., Tafari, 473 F.3d at 443 (“The PLRA makes
clear that Congress was aware of, and intended to differentiate
between, particular bases for dismissal.”). If we were to adopt
the government’s approach, we would be effectively writing
another category of strikes into the PLRA. We have neither the
authority nor inclination to substitute our policy judgment for
that of Congress. See Keene Corp. v. United States, 508 U.S.
200, 208 (1993) (courts have a “duty to refrain from reading a
phrase into the statute when Congress has left it out”). Such an
expansion of the statute would not even advance the purpose of
the PLRA, which was “designed to stem the tide of egregiously
meritless lawsuits.” Tafari, 473 F.3d at 443 (emphasis added).
Each of the three categories of strikes in the statute involves
dispositions that look to the merits of the suit. As we have
already noted, a dismissal for failure to prosecute is made
without regard to the merits of the claim. Rather, it is a
mechanism whereby courts may protect their power to ensure
compliance with their rules and orders. See D.C. Cir. Rule 38
(“When any party to a proceeding before this court . . . fails to
comply with the FRAP, these rules, or an order of this court . . .
the court may . . . impose appropriate sanctions . . . includ[ing]
dismissal for failure to prosecute”); 18A CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 4440 (2d ed. 2002) (noting that
8
the purpose of this “strong sanction [is] to enforce compliance
with proper procedure”).
We recognize that a prisoner who files repeated actions
or appeals only to allow them to languish can present a burden
to the courts similar to the problems addressed by the three
strikes provision of the PLRA. A prisoner “for whom litigation
was a costless pastime” could repeatedly bring actions or
appeals that were dismissed for failure to prosecute without
incurring any costs—either financially or as strikes under the
PLRA. Ibrahim, 208 F.3d at 1036. We believe the best solution
to this problem lies in exercising our discretionary authority to
deny IFP status to prisoners who have abused the privilege. Our
ability to do so derives from both the PLRA itself, 28 U.S.C.
§ 1915(a) (“any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or
proceeding, civil or criminal, or appeal therein, without
prepayment of fees or security therefor”) (emphasis added), and
our more general supervisory authority to manage our docket so
as to “promote[] the interests of justice,” In re McDonald, 489
U.S. 180, 184 (1989).
Litigants have a constitutional right of access to the
courts, see, e.g., Bounds v. Smith, 430 U.S. 817, 821 (1977), but
that right “is neither absolute nor unconditional,” In re Green,
669 F.2d 779, 785 (D.C. Cir. 1981) (per curiam). It must be
“counterbalanced by the traditional right of courts to manage
their dockets and limit abusive filings.” Cofield v. Ala. Pub.
Serv. Comm’n, 936 F.2d 512, 517 (11th Cir. 1991) (citation
omitted). When a court determines that a litigant is an abusive
filer, it “may impose conditions upon [the] litigant—even
onerous conditions . . . so long as they are, taken together, not so
burdensome as to deny the litigant meaningful access to the
courts.” In re Green, 669 F.2d at 786. Denying a prisoner the
ability to proceed IFP is one such condition courts have imposed
9
on prisoners who have abused the IFP privilege. Ibrahim, 208
F.3d at 1036 (“Leave to file a claim in forma pauperis has
always been a matter of grace, a privilege granted in the court’s
discretion . . . , and denied in the court’s discretion when that
privilege has been abused by filing claims or appeals that are
frivolous or otherwise not taken in good faith.”) Indeed, the
Supreme Court has gone so far as to say that it has “a duty to
deny in forma pauperis status to those individuals who have
abused the system.” In re Sindram, 498 U.S. at 180 (emphasis
added). Thus, our authority to deny IFP status to a prisoner who
has abused the privilege is clear. What is not so clear, however,
is when that discretion should be exercised.
At oral argument, we put the question to amicus, asking
for a standard that we might apply in determining when to
exercise our discretion to deny a prisoner IFP status. In
response, amicus urged us to apply the same standard that has
been used to determine whether a litigant is an abusive filer who
warrants sanctioning, Oral Arg. at 24:18-21, namely, when
“[b]oth the number and content of [the litigant’s] filings”
constitute a pattern of frivolousness or harassment of either
defendants or the court, In re Powell, 851 F.2d 427, 434 (D.C.
Cir. 1988) (per curiam). We find this suggestion helpful and
would add two additional factors to the standard—the frequency
and disposition of the filings. In a series of cases concluding
that four pro se petitioners had abused the IFP privilege to such
an extent that the Supreme Court was warranted in issuing an
order preventing them from proceeding IFP on any petition for
extraordinary writs, the Court looked to the number, content,
frequency, and disposition of the petitioner’s previous filings to
make that determination. See, e.g., In re Anderson, 511 U.S.
364, 365 (1994) (denying petitioner IFP status whenever seeking
an extraordinary writ because petitioner’s twenty-two petitions
and motions over three years were an abuse of the privilege); In
re Demos, 500 U.S. 16, 16-17 (1991) (denying petitioner IFP
10
status whenever seeking an extraordinary writ because
petitioner’s thirty-two IFP filings over three years were an abuse
of the privilege); In re Sindram, 498 U.S. 177, 177-78 (1991)
(denying petitioner IFP status whenever seeking an
extraordinary writ because petitioner’s forty-three petitions and
motions over three years were an abuse of the privilege); In re
McDonald, 489 U.S. 180 (1989) (denying petitioner IFP status
whenever seeking an extraordinary writ because petitioner’s
seventy-three filings over eighteen years were an abuse of the
privilege). Thus, in concluding whether Butler should be
allowed to proceed IFP, we will examine the number, content,
frequency, and disposition of Butler’s previous filings to
determine if there is a pattern of abusing the IFP privilege in his
litigation history.
Before turning to that analysis, we pause to address
amicus’ reliance on our decision in Powell, which it asserts
supports the argument that Butler is not an abusive filer. See
Amicus Reply Br. at 16-18. In Powell, we reversed the district
court’s enjoining of two pro se litigants from filing claims
without leave of the court, because, we concluded, their prolific
filings did not warrant such an “extreme” remedy. See 851 F.2d
at 434 (“An injunction is an extreme sanction and should be
imposed in only the most egregious cases. On this record, such
a case is not before us.”). On that conclusion rests a
fundamental distinction between Powell and what we are
considering here that escapes amicus. Powell involved a direct
restriction on the litigant’s right of access to the courts. The
question facing us is quite different. We are not contemplating
imposing a restriction on a constitutional right, but rather
denying a privilege. The factors we consider to make that
determination are similar to those employed by Powell and its
progeny, but the test is different because we are not considering
the extreme penalty of denying Butler access to the courts. Our
inquiry therefore is not whether Butler’s litigation history is
11
abusive enough to justify the extreme penalty of an injunction,
but simply whether he has abused a special privilege of the court
to such an extent that that privilege should not again be extended
to him here.
Butler is a prolific filer. In addition to his five appeals
that we dismissed for failure to prosecute, we are aware of five
other appeals Butler has filed with this court.8 Eight of these ten
appeals have been docketed within the last four years. For each,
Butler was proceeding IFP. The Joint Appendix contains a
PACER print-out listing dozens of cases that include “James A.
Butler” as a party. Although it is unlikely that all of these are
our “James A. Butler,” we have been able to identify at least
fifteen that are.9 It appears that all of these are FOIA actions,
most of which are related to Butler’s conviction. Many of these
appear to be seeking the same documents. In each, he was
8
USCA No. 06-5116 (held in abeyance); USCA No. 06-5026
(held in abeyance); USCA No. 05-5171 (this case); USCA No. 05-
5073 (held in abeyance); USCA No. 05-5022 (Butler lost on summary
affirmance).
9
Butler v. DOJ, 1:2002cv00412 (filed Mar. 6, 2002); Butler
v. DEA, 1:1994cv00571 (filed Mar. 21, 1994); Butler v. DOJ,
1:2003cv00608 (filed Mar. 6, 2003); Butler v. Treasury Inspector
General, 1:2003cv00672 (filed Mar. 12, 2003); Butler v. IRS,
1:2002cv01034 (filed May 28, 2002); Butler v. IRS, 1:2002cv01112
(filed June 7, 2002); Butler v. Bureau of Prisons, 1:2002cv01113
(filed June 7, 2002); Butler v. FBI, 1:1996cv01150 (filed May 23,
1996); Butler v. DOJ, 1:2003cv01209 (filed June 4, 2003); Butler v.
Tapscott, 1:1994cv01236 (filed Jan. 27, 1995); Butler v. Assistant
Attorney Gen., 1:1994cv01241 (filed Nov. 6, 1995); Butler v. USPO,
1:1995cv01705 (filed Sept. 8, 1995); Butler v. DOJ, 1:1996cv01907
(filed Mar. 15, 1999); Butler v. Dept. of Treasury, 1:1995cv01931
(filed Oct. 13, 1995); Butler v. Bureau of Prisons, 1:2002cv02203
(filed Nov. 7, 2002).
12
proceeding IFP. All but one were dismissed on either summary
judgment, a motion to dismiss, or for failure to respond.
Considering this pattern, it appears that filing these actions is a
“pastime” for Butler. We conclude that he has abused the
privilege to proceed IFP and deny his motion to do so here
again. Butler may continue to engage in this pastime if he
wishes, but if he chooses to do so here, it will have to be on his
own dime.
III.
For the foregoing reasons, Butler’s motion for leave to
proceed IFP is denied.
So ordered.