[00:00:00] Speaker 03: Good morning. [00:00:01] Speaker 02: Good morning. [00:00:04] Speaker 02: May it please the court? [00:00:05] Speaker 02: Margaret Riscone, on behalf of Appellant Edward Spencer, I'd like to reserve three minutes for rebuttal. [00:00:12] Speaker 02: The district court's conclusion that a Rule 41A1 voluntary dismissal results in a PLRA strike is at odds with the statutory text. [00:00:22] Speaker 02: A voluntary dismissal is not a dismissal on the grounds of a failure to state a claim. [00:00:27] Speaker 02: Like a dismissal for lack of subject matter jurisdiction, there is simply no determination on the merits. [00:00:33] Speaker 02: The only possible grounds are voluntariness, as the 11th Circuit recently held in a published opinion. [00:00:41] Speaker 02: The district court reached a contrary conclusion, not by analyzing the PLRA's text or the nature of Rule 41A1 voluntary dismissals. [00:00:49] Speaker 02: It instead focused on the fact that Mr. Spencer's voluntary dismissals were preceded by magistrate judge's screening determination. [00:00:57] Speaker 02: While this court has said that such determinations can result in strikes where the district court, quote, delays the entry of judgment until a plaintiff fails to amend, a voluntary dismissal does not accede to any such conditional ruling. [00:01:12] Speaker 02: Defendants otherwise raise various policy concerns, but courts across the country have for years said that voluntary dismissals are not strikes and the sky has not fallen. [00:01:23] Speaker 02: In any event, such policy concerns are a matter for Congress, not this court. [00:01:29] Speaker 02: This court should reverse. [00:01:31] Speaker 03: I know it's not quite what happened here, but just to kind of press on how this works analytically, what would have happened if the prisoner had voluntarily dismissed and then in doing so said, I'm dismissing this voluntarily on the grounds that it's frivolous, malicious, and fails to state a claim? [00:01:52] Speaker 03: Would that kind of voluntary dismissal count as a strike? [00:01:56] Speaker 02: It wouldn't, Your Honor, because his motivations or his reasons would be irrelevant. [00:02:01] Speaker 02: The way that Rule 41A1 voluntary dismissals work, what this Court has said in Lake at Las Vegas, 933F2 at 727, they do not consider a plaintiff's reasons for filing a voluntary dismissal. [00:02:15] Speaker 02: The quote alpha and omega is the doing of plaintiff alone. [00:02:19] Speaker 02: It's just a simple filing of the notice. [00:02:21] Speaker 02: That's the only operative portion of a voluntary dismissal. [00:02:25] Speaker 02: In that way, it's somewhat similar to a dismissal for lack of subject matter jurisdiction. [00:02:30] Speaker 02: The only operative portion of such a dismissal is the jurisdictional finding. [00:02:35] Speaker 02: There can be instances in dismissals for lack of subject matter jurisdiction where maybe the district court still reaches the merits for whatever reason. [00:02:43] Speaker 02: But what this court said in more of you Maricopa County 657 F third at eight nine five that. [00:02:50] Speaker 02: It doesn't matter. [00:02:51] Speaker 02: There can be no alternative holding in those cases. [00:02:54] Speaker 02: There's only one grounds, the jurisdictional grounds. [00:02:57] Speaker 02: And here, in a Rule 41A1 context, the only grounds are voluntariness. [00:03:02] Speaker 02: It's simply the voluntarily filing of the plaintiff. [00:03:06] Speaker 01: Let me ask you this. [00:03:08] Speaker 01: You're familiar with the case of Harris versus Magnum. [00:03:11] Speaker 02: Yes, Your Honor. [00:03:12] Speaker 01: And your take on that, and that one is the initial [00:03:16] Speaker 01: ruling that a complaint failed to state a cause of action wasn't negated by the plaintiff's later failure to amend the complaint. [00:03:24] Speaker 01: What bearing, if any, do you think that case has on this one? [00:03:28] Speaker 02: Your Honor, I actually think that that case helps us here. [00:03:31] Speaker 02: Because what that case points out is that what really matters is whether there was a merits determination and whether the dismissal was, in effect, a merits determination. [00:03:43] Speaker 02: In Mangum, the dismissal, the ultimate entry of judgment, was just a delayed entry of judgment. [00:03:49] Speaker 02: Or as this court said in Lira, it converts. [00:03:52] Speaker 02: from a dismissal of the complaint into the dismissal of the action. [00:03:57] Speaker 02: So the initial merits determination is still what the dismissal is when the dismissal is for failure to prosecute or for failure to follow a court order. [00:04:06] Speaker 02: But here, there is no merits determination. [00:04:09] Speaker 02: Like I said before, the only operative part is the voluntariness. [00:04:14] Speaker 02: That is what the grounds of a voluntary dismissal are. [00:04:17] Speaker 02: And Your Honors, it's actually especially clear for initial voluntary dismissals, the fact that they have no merits determination. [00:04:26] Speaker 02: It's actually clear given the language that defendants point out in page 28 of their response brief. [00:04:32] Speaker 02: Rule 41A1B says that only a second voluntary dismissal, quote, operates as an adjudication on the merits. [00:04:42] Speaker 02: So for an initial voluntary dismissal, like Mr. Spencer's, [00:04:45] Speaker 02: There can be no adjudication on the merits. [00:04:48] Speaker 02: There's no merits determination whatsoever. [00:04:51] Speaker 03: And because it's fair, it's just that the statute doesn't say adjudication on the merits, right? [00:04:57] Speaker 03: It talks about something being dismissed on the grounds of that. [00:04:59] Speaker 03: And I think the other side's position is not necessarily that all voluntary dismissals would count, but that some might. [00:05:06] Speaker 03: when the circumstances would indicate that that's kind of what's really happening. [00:05:11] Speaker 03: So in my hypothetical where the prisoner says, yes, I can see that this case is frivolous and fails to state a claim, and therefore I'm voluntarily dismissing it, you might think that that could be, there is an argument that that could fit within the text of the statute. [00:05:29] Speaker 03: And so I think the other side would say, and moving forward from that, that's kind of what's going on here. [00:05:34] Speaker 02: Your Honor, I would say in that hypothetical that those would be perhaps reasons or motivations for filing a voluntary dismissal, but they aren't the grounds. [00:05:44] Speaker 02: What this court and the Supreme Court has said, what grounds mean is the legal basis, the legal justification of the action. [00:05:52] Speaker 02: What is the operative portion of it? [00:05:54] Speaker 02: And no matter what a plaintiff says in his filing of a notice of voluntary dismissal, [00:05:59] Speaker 02: Those aren't the grounds because they aren't the legal basis. [00:06:02] Speaker 02: They're irrelevant. [00:06:03] Speaker 02: That's what this court has said. [00:06:04] Speaker 03: I mean, I guess another way to say it would be the only entity that can dismiss something on the grounds that something is frivolous is the court. [00:06:12] Speaker 02: Yes, Your Honor, I think that is a clear way to read the statutory text. [00:06:15] Speaker 03: And I guess the question there would be, the statute is written in sort of the passive voice, you know, that was dismissed on the grounds that, as opposed to saying that a court dismisses on the grounds that. [00:06:26] Speaker 03: So you want us to read basically the court to be implicitly into the statute. [00:06:32] Speaker 03: And why do you think that's justified? [00:06:34] Speaker 02: Well, first, I don't think this court has to read it that way. [00:06:36] Speaker 02: I think, like I said, it would be enough just to say that a Rule 41A1 voluntary dismissal [00:06:41] Speaker 02: is not a merit determination or is just on the grounds of voluntariness and that alone is enough to say that it can't be on the grounds of failure to state a claim. [00:06:51] Speaker 02: Your honor, both the Supreme Court and actually this court have talked about in the context of where statutes are written in the passive voice. [00:06:59] Speaker 02: And what this court and the Supreme Court have done is look to the broader context, to look at, okay, well, who is the normal actor in these situations? [00:07:07] Speaker 02: And the statutory context under the PLRA makes clear that the only actor contemplated for dismissing an action on any one of these enumerated grounds [00:07:17] Speaker 02: is a court. [00:07:19] Speaker 02: And this court can look to its decision in AHALA v. Parole Commission, that's 997F2nd 655, where this court has looked at a statute that uses the passive voice. [00:07:33] Speaker 02: In some way, it's kind of similar to when there is a definitive article. [00:07:38] Speaker 02: If you say the parole commission or the [00:07:41] Speaker 02: defendant, you presume you know who the person being talked about is. [00:07:46] Speaker 02: It's similar when you use the passive voice. [00:07:49] Speaker 02: It's assumed that you know who the actor is based on the rest of the statutory context. [00:07:53] Speaker 02: And here, the statutory context only points to one actor, a court. [00:07:58] Speaker 02: And that also makes sense because [00:08:00] Speaker 02: whether an action should be dismissed on the grounds that it is frivolous, malicious, or fails to state a claim, those are legal determinations that typically only a court makes. [00:08:12] Speaker 02: Parties and plaintiffs can make arguments as to what grounds are appropriate, but usually it's only a court who decides whether the dismissal should be based on any one of those grounds. [00:08:23] Speaker 01: I think you touched on this a little bit earlier, but I guess what troubled me about this case is, [00:08:30] Speaker 01: If we agree with your construction of the statute, it seems to me that in this case, your client could file hundreds of lawsuits, have them found to be without merit and withdraw, never file again, and just dismiss. [00:08:48] Speaker 01: And there would be no impediment to that. [00:08:49] Speaker 01: Would you agree with that? [00:08:50] Speaker 02: No, Your Honor. [00:08:51] Speaker 02: I would disagree that there is no impediment to that. [00:08:54] Speaker 02: But first, let me just step back for a second. [00:08:56] Speaker 02: And to be clear, [00:08:58] Speaker 02: This court would not be the first court to adopt our reading of the PLRA. [00:09:04] Speaker 02: The 11th Circuit has adopted this reading actually since 2016, the 4th Circuit since 2011, the 10th Circuit since 2015. [00:09:11] Speaker 01: That's all great, but I still want an answer to my question. [00:09:17] Speaker 01: Could your client potentially, if he did what he did in this case, not file an infinite number of cases [00:09:26] Speaker 01: have the court find that there was a failure to state a claim, dismiss the case, not have it count as a strike. [00:09:34] Speaker 01: Isn't that correct? [00:09:36] Speaker 02: Your Honor, it is correct that they would not count as a strike, but there are other tools at district court's disposal that district courts could use. [00:09:43] Speaker 01: I understand, but what are you talking about the PLRA here? [00:09:45] Speaker 01: And that's what I want to find out is that your position that under the PLRA, your client could say a hundred times do this, and it would not basically count as a strike. [00:09:55] Speaker 02: That is correct, Your Honor. [00:09:56] Speaker 02: They would not count as strikes, but I don't think that is a cause for this court to be concerned for actually three different reasons. [00:10:04] Speaker 02: One, Your Honor, as I mentioned before, other circuits have adopted this reading, and there is no evidence of any sort of floodgates opening or any sort of, you know, [00:10:15] Speaker 02: Exponent number of of bad actors doing just what you described second your honor actually magistrate judges in this circuit are recommending to incarcerated plaintiffs that if they have an initial screening and the magistrate judge says. [00:10:32] Speaker 02: I've determined that you failed to state a claim. [00:10:34] Speaker 02: You can either file an amended complaint, or you can file a voluntary dismissal and avoid a strike. [00:10:40] Speaker 02: So when there are magistrate judges in this circuit that are recommending that, you have people in the front lines who aren't seeing this sort of problem being in effect. [00:10:50] Speaker 02: Additionally, Your Honor, as I mentioned, there are other tools in district courts [00:10:53] Speaker 02: disposal. [00:10:54] Speaker 02: They could declare a particularly problematic plaintiff as a vexatious litigant. [00:11:00] Speaker 02: District courts also have discretion when granting IFP status in the first place. [00:11:05] Speaker 02: Your Honor, it's also worth noting that, as I mentioned before, Rule 41A1B actually has a built-in protection for abusing the voluntary dismissal process via the two dismissal rule. [00:11:17] Speaker 02: So a plaintiff could not file the same claims or even file complaints arising out of the same facts over and over again and continue to avoid strikes, as Your Honor put it. [00:11:31] Speaker 02: They would be barred from doing that more than twice. [00:11:35] Speaker 01: As to the same facts, I certainly understand that. [00:11:37] Speaker 01: But I'm just saying that obviously, in this case, your client's a very smart, capable person in terms of coming up with things. [00:11:45] Speaker 01: Lots of litigation. [00:11:47] Speaker 01: So let's assume it's all new facts. [00:11:50] Speaker 01: Basically, what you're saying is this is Congress's problem. [00:11:54] Speaker 01: You must, if you will, do what Justice Gorsuch did in Bostock and just follow this. [00:12:00] Speaker 01: Is that right? [00:12:02] Speaker 02: Well, Your Honor, I think that we have a pretty clear textual reading. [00:12:05] Speaker 02: But yes, if that does become a problem, that's certainly an issue for Congress to step in and address. [00:12:11] Speaker 02: And if it were a problem worth addressing, I think we would have seen it by now, given that this is a reading that courts have adopted for over 10 years now across the country. [00:12:20] Speaker 02: And we haven't seen this become a problem. [00:12:22] Speaker 02: In fact, the only two problems that defendants point out [00:12:26] Speaker 02: are two district court cases 17 years apart. [00:12:29] Speaker 02: And actually in the more recent case, the Western District of Arkansas case, the defendant's site, the district court actually used its authority to declare the plaintiff in that case a vexatious litigant. [00:12:39] Speaker 02: So that is a tool that district courts have at their disposal if this becomes a problem, but we haven't seen it become a problem. [00:12:47] Speaker 02: I also want to turn to Mr. Spencer's voluntary dismissals in this case, because I think it's important to point out that those dismissals are not the hypothetical that Judge Bress that you pointed out at the very beginning of this argument. [00:13:02] Speaker 02: Mr. Spencer in no way indicated that he was voluntarily dismissing his claims, because he thought that he had failed to state a claim. [00:13:11] Speaker 02: In the Beeler case, he filed a voluntary dismissal that just said, [00:13:15] Speaker 02: I'm voluntarily dismissing this under Rule 41A1, and that was the end of the matter. [00:13:20] Speaker 02: In Coker, Your Honors, he filed it as an objection to the magistrate judge's finding and recommendation. [00:13:27] Speaker 02: So I think it would be pretty hard to say that he acceded or adopted or somehow incorporated the magistrate judge's failure to state a claim finding in his own voluntary dismissal. [00:13:40] Speaker 02: He objected to them when he voluntarily dismissed. [00:13:42] Speaker 02: And so at the very minimum, this case is not the situation where you have a voluntary dismissal on any sort of failure to state a claim basis. [00:13:54] Speaker 02: And for that reason, Your Honors, [00:13:57] Speaker 02: I would just ask that you read the statutory text as Congress wrote it and as this court has interpreted it time and again to mean what it says. [00:14:06] Speaker 02: And it says that a strike is a dismissal on the grounds that it failed to state a claim. [00:14:11] Speaker 02: A voluntary dismissal cannot be that. [00:14:14] Speaker 02: And for that reason, we ask your honors to reverse. [00:14:19] Speaker 03: Thank you. [00:14:19] Speaker 03: We'll put two minutes on the clock when you return. [00:14:22] Speaker 03: Let's hear from the state. [00:14:33] Speaker 04: Good morning, and may it please the court, Deputy Attorney General Martha Ehlenbach for defendants. [00:14:38] Speaker 04: The court should follow its prior decisions in Harris versus Mangum, El Shaddai versus Zamora, and Kanat versus Hogan, which each hold that a court must look to the reasons underlying the dismissal when assessing a strike. [00:14:51] Speaker 04: And here, where a prisoner chooses to preemptively dismiss a meritless action, and the record shows that the dismissal occurred because a screening decision found that the action failed to state a claim, [00:15:03] Speaker 04: That dismissal is for failure to state a claim, and it is a strike. [00:15:07] Speaker 03: It seems like our other cases don't really answer this, because those read to me as more, how do you interpret a court order? [00:15:13] Speaker 03: Whereas here, you're essentially asking us to interpret what a party has done. [00:15:18] Speaker 04: Your Honor, I would say that's a distinction without a difference in this case. [00:15:22] Speaker 04: And the case most on point for that is really Harris versus Mangum, as Your Honor's pointed out. [00:15:28] Speaker 04: In that case, the plaintiff filed [00:15:30] Speaker 04: four cases that were dismissed with leave to amend, just like Mr. Spencer did here. [00:15:35] Speaker 04: And then he failed to file the amended complaint within the time allowed, and the district court dismissed those cases. [00:15:41] Speaker 04: Those dismissals were for failure to state a claim this court held, even where the court had contemplated that those complaints maybe could have been saved by amendment, and even where the ultimate final dismissal was actually for failure to prosecute. [00:15:56] Speaker 03: Isn't that ultimately just the interpretation of a court order? [00:15:59] Speaker 03: We're deciding in that case that when a judge has dismissed a case for failure to state a claim and the defendant does nothing, then that dismissal essentially ripens into a failure to prosecute, that we should therefore interpret the order as falling within the grounds of the statute. [00:16:15] Speaker 03: But here, that's not what's happening. [00:16:17] Speaker 03: There's a determination by a court and then a voluntary dismissal which essentially erases it. [00:16:23] Speaker 04: I don't believe it's correct that it erases at Your Honor. [00:16:26] Speaker 04: Your Honor is still empowered to look under these prior decisions as to the reason for the dismissal. [00:16:33] Speaker 04: And that's what this Court has really held every time in looking at the text of the PLRA, in looking at that dismissal on the grounds. [00:16:39] Speaker 03: So what if Spencer had, in response to the Court's decision, filed a voluntary dismissal that says, [00:16:47] Speaker 03: I strongly disagree that my action fails to state a claim, but I lack the resources to pursue this matter further. [00:16:53] Speaker 03: Therefore, I'm voluntarily dismissing it. [00:16:55] Speaker 03: Would that change this? [00:16:57] Speaker 04: I have two-part answer to that. [00:17:00] Speaker 04: The first part is that Mr. Spencer's disagreement with that decision in and of itself [00:17:06] Speaker 04: does not change the analysis because he's still dismissing on the basis of that underlying screening order. [00:17:12] Speaker 04: Now, that second piece... Well, I don't think that's true. [00:17:14] Speaker 03: In my hypothetical, he's not doing that. [00:17:16] Speaker 03: He's dismissing it because he just can't pursue it further because he lacks the resources. [00:17:21] Speaker 04: Right. [00:17:21] Speaker 04: That second piece, I think that's where the difference might lay, Your Honor, in that if the record does show or if there's litigation regarding a plaintiff's IFP status and that plaintiff comes back after the defendant has presented that initial evidence and said, [00:17:37] Speaker 04: I dismissed for a different reason. [00:17:39] Speaker 04: There's some other impediment in prosecuting my case, or something like your example. [00:17:44] Speaker 04: I don't have the resources at that time. [00:17:46] Speaker 04: I think that would be evidence that a court can consider in determining whether or not that dismissal is a PLRA strike. [00:17:54] Speaker 03: But certainly, here is- One difficulty with that, then, is that we would then be essentially interpreting what a prisoner means when he or she dismisses a claim. [00:18:06] Speaker 03: which is somewhat counterintuitive considering how the statue works, which is sort of mechanical. [00:18:10] Speaker 03: It says, you know, were there three strikes, yes or no, they were going to have to delve into what the prisoner meant when he dismissed something, which seems a little unwieldy. [00:18:20] Speaker 04: Your Honor would still really be only, the court would still really be only answering one question, which is, [00:18:27] Speaker 04: What is the underlying reason for that dismissal? [00:18:30] Speaker 04: And that's the exact same thing this court has always advised that courts must do. [00:18:34] Speaker 03: Right, but in my hypothetical where a prisoner says, I disagree that this was for failure to state a claim, the issue is that I just don't have the resources to go forward with that. [00:18:44] Speaker 03: Would a court then examine whether that's valid? [00:18:46] Speaker 03: We would go and do some discovery onto the prisoner's resources to find out that, well, no, in fact, the true reason for dismissal [00:18:54] Speaker 03: is because he just can't state a claim, and he's really admitting that these resources, arguments that he's making are just pretext. [00:19:02] Speaker 04: I don't know that there would need to be discovery, Your Honor. [00:19:04] Speaker 04: I think it could still fit into the ordinary litigation about IFP status. [00:19:08] Speaker 04: Usually there's an initial motion and a response and a reply, and then the court would be free to consider what evidence the plaintiff puts forward as part of that motion. [00:19:17] Speaker 04: And certainly district courts have the ability to control their dockets and to determine what they would need to consider [00:19:22] Speaker 04: in that type of instance where there's litigation about an individual's three-strike status. [00:19:27] Speaker 04: But at the end of the day, in Mr. Spencer's case, we don't need to really evaluate that question, because Mr. Spencer never claimed he was dismissing for any reason other than the screening order. [00:19:36] Speaker 04: And we know in the Coker 1 case in particular. [00:19:38] Speaker 03: Well, yeah, I mean, you want us to assume that, right? [00:19:40] Speaker 03: I mean, you want us to assume that when a prisoner receives an order like this and then voluntarily dismissed, that [00:19:47] Speaker 03: He's doing so because of the reasons the judge gave, and that if he wanted to opt out of that, if you will, he would have to say something to put us on notice of that. [00:19:55] Speaker 03: I mean, it seems like we're getting a fairly far afield of the statutory text here, though. [00:20:01] Speaker 04: Our interpretation still requires the court to look at the reason for the dismissal, which is exactly the statutory text. [00:20:07] Speaker 04: And in this case, this court doesn't need to do to look any further, because Mr. Spencer indicated in COCR 1, it's in the record in his [00:20:17] Speaker 04: response to the court's screening order. [00:20:19] Speaker 04: He says he wants to dismiss in order to attempt to avoid a strike, essentially. [00:20:23] Speaker 04: And that shows that the dismissal fits well within the bounds of the PLRA. [00:20:27] Speaker 04: And it's essentially what happened. [00:20:28] Speaker 03: I'm not sure I agree with that. [00:20:29] Speaker 03: I mean, it shows he doesn't want to have a strike, which makes perfect sense. [00:20:33] Speaker 03: I don't know that it shows that he's aware of the risk that this could be considered a strike. [00:20:38] Speaker 03: I don't know that it shows he's accepting the district court's reason. [00:20:42] Speaker 03: That would require us to make an assumption. [00:20:45] Speaker 04: Then we don't need him to accept the district court's reason, Your Honor. [00:20:49] Speaker 04: We're looking at that underlying reason for the dismissal, and the court found he failed to state a claim. [00:20:53] Speaker 00: Except the court granted him leave to amend, which means that the court said, there's a possibility you can state a claim. [00:21:02] Speaker 04: That's true, and that's what happened in Harris v. Mangum as well. [00:21:06] Speaker 04: And that wasn't a barrier to Harris v. Mangum, the case being determined to strike. [00:21:11] Speaker 04: The other piece, Your Honor, and Your Honor recognized that this would cause an issue as well, practically, because without this there would be that sort of leaky filter that the Supreme Court talked about in Coleman versus Tollefson. [00:21:26] Speaker 04: We wouldn't be able to consider the fact that there are inmates like Mr. Spencer [00:21:31] Speaker 04: who has done this five times, where he has filed a case, waited for the magistrate judge to evaluate the merits, and then decided that he, at that point in time, is going to voluntarily dismiss. [00:21:45] Speaker 04: The goal of the PLRA is really to avoid that process by requiring inmates to think twice before filing suit. [00:21:50] Speaker 00: But isn't the other goal to avoid needless litigation? [00:21:54] Speaker 00: And so if the prisoner elects to voluntarily dismiss, [00:21:58] Speaker 00: Ultimately, that's an act of judicial economy in the long run because it doesn't have to come back up to the Magister judge. [00:22:05] Speaker 04: In these cases, it's not, Your Honor, because especially when a court screens a complaint and dismisses a leave to amend multiple times. [00:22:12] Speaker 00: Under your theory, you would want the Magister judge to reevaluate a second time or determine that it was frivolous. [00:22:23] Speaker 00: In other words, if voluntary dismissals count as strikes, [00:22:28] Speaker 00: The other possibility, Your Honor, is that the prisoner will voluntarily dismiss before this process happens, and that's really what we want to encourage. [00:22:48] Speaker 04: The goal of the PLRA is [00:22:50] Speaker 04: is judicial economy, so to avoid the fact that courts would have to go through the screening process. [00:22:56] Speaker 04: And it becomes especially an issue when an inmate screens, and it's dismissed, and screens, and it's dismissed four, five, or six times. [00:23:04] Speaker 03: Which does happen. [00:23:04] Speaker 03: We can imagine that happening. [00:23:05] Speaker 03: I mean, I guess one question I would ask is if there is an inmate who's repeatedly filing things and then having them screen and dismissing, [00:23:15] Speaker 03: The inmate is never going to win anything. [00:23:17] Speaker 03: And so this would, we're hypothesizing an inmate who has no desire to actually succeed on a claim because he's always going to voluntarily dismiss. [00:23:25] Speaker 03: So there might be such a person who's just using the courts for sport. [00:23:29] Speaker 03: But at that point, wouldn't there be some other remedies that a court would have to just stop an inmate from filing anything altogether? [00:23:35] Speaker 04: Your Honor, this is a remedy. [00:23:36] Speaker 04: The PLRA says an inmate who brings multiple actions. [00:23:38] Speaker 00: But the question is, are there other remedies? [00:23:40] Speaker 00: I mean, declaring the litigant a vexatious litigant, prefiling review orders? [00:23:47] Speaker 04: Not necessarily. [00:23:48] Speaker 04: I think it would... You don't think those could apply? [00:23:51] Speaker 04: Well, I think it's a very high standard for evaluating whether or not there needs to be a prefiling order issued. [00:23:57] Speaker 04: And I don't know that there's any case finding that simply multiple voluntary dismissals would meet that standard. [00:24:03] Speaker 03: And the other issue... Well, I mean, it seems quite plausible that it would, right? [00:24:08] Speaker 03: If somebody is routinely filing things and then getting them dismissed and then walking away and they're doing this repeatedly, that would seem like a good candidate for somebody who maybe shouldn't be allowed to file in the courts without special reason. [00:24:20] Speaker 04: Potentially, but the PLRA gets to that as well. [00:24:23] Speaker 04: And it gets to that more quickly and cleanly here because looking at the underlying reason for the dismissal in this type of case, it is essentially a dismissal for failure to state a claim. [00:24:35] Speaker 03: If we go back to the text, I mean, which says dismissed on the grounds that it is frivolous, malicious, or fails to state a claim, I mean, don't we usually think that the grounds for dismissal are the grounds given by a court? [00:24:46] Speaker 03: And here a voluntary dismissal sort of eclipses those grounds because it can be given [00:24:51] Speaker 03: It can be voluntarily dismissed for any reason and for no reason. [00:24:54] Speaker 04: Well remember there was a court dismissal here. [00:24:56] Speaker 04: I mean the court did determine that the action failed to state a claim and there's nothing in the statute that says the ultimate dismissal must be court ordered. [00:25:03] Speaker 03: But the action wasn't dismissed. [00:25:05] Speaker 03: The action was dismissed by the [00:25:07] Speaker 03: decision of Mr. Spencer to voluntarily dismiss his own case. [00:25:11] Speaker 04: That's true. [00:25:12] Speaker 04: And that's essentially the argument this court rejected in Harris, where the action was dismissed for failure to prosecute, but the underlying reason for the dismissal was the failure to state a claim. [00:25:22] Speaker 00: But you would agree that an order dismissing with leave to amend is not a final order? [00:25:28] Speaker 04: That's right, Your Honor. [00:25:29] Speaker 04: It's not. [00:25:30] Speaker 04: But again, Harris decided that question. [00:25:32] Speaker 04: Because in Harris, it wasn't a final order either. [00:25:34] Speaker 04: The plaintiff was given leave to amend in those cases. [00:25:37] Speaker 00: So, counsel, how do you deal with the actions of the other circuits, the 4th and the 11th, and the 10th and an unpublished have gone the other way? [00:25:46] Speaker 00: Do you think they're wrong? [00:25:48] Speaker 04: I think the 10th, I'll address the 11th circuit's case in Smith, because Smith is the only case that expressly decided this issue. [00:25:55] Speaker 04: The 4th and 10th, there were really other reasons why those underlying decisions weren't strikes. [00:26:01] Speaker 04: There was no underlying full dismissal of the action for failure to state a claim in those two cases. [00:26:06] Speaker 04: But in Smith, there was. [00:26:08] Speaker 04: And Smith actually followed another 11th Circuit case called Dacre, which disagreed with Harris versus Mangum. [00:26:16] Speaker 04: So it's that underlying disagreement that led to that result. [00:26:20] Speaker 04: And I think here, because Harris reached the opposite result, this court should do so here as well, because this court understands that the real question here is whether the dismissal rang the bells of frivolous maliciousness or failure to state a claim. [00:26:33] Speaker 04: And the mechanical reason for the dismissal, the procedural posture of the dismissal, does not need to be dispositive. [00:26:41] Speaker 04: That's really the biggest problem with plaintiff's rule, is that it's a categorical rule that doesn't allow the court to evaluate. [00:26:48] Speaker 04: It would carve out this blanket exception for voluntary dismissals, which isn't contemplated by 1915-G, and it wouldn't allow the court to evaluate whether a particular voluntary dismissal rang the bells of failure to state a claim. [00:27:01] Speaker 04: And then it would also produce that leaky filter. [00:27:03] Speaker 04: where inmates who want to gain the system could file multiple meritless actions and voluntarily dismiss without consequence. [00:27:10] Speaker 04: Mr. Spencer has done so. [00:27:11] Speaker 04: He's filed three additional cases where he voluntarily dismissed, sometimes after receiving multiple screening decisions. [00:27:19] Speaker 04: And even though the second time he didn't add any new allegations, the court found that his complaints failed for the same reason that it failed in the original case. [00:27:31] Speaker 04: He still, at that point, he voluntarily dismissed. [00:27:34] Speaker 04: At that point, and this court looked at that in KNAP as well, at that point, it's simply reasonable to determine that he can't state a claim. [00:27:42] Speaker 04: And that essentially operates as a concession, regardless of his own private feelings on the matter. [00:27:47] Speaker 04: Certainly, if he disagrees, he can object to the screening decision. [00:27:50] Speaker 04: He can request review by the district court. [00:27:53] Speaker 04: Or he can evaluate his lawsuit at the beginning, which is really what we want to encourage inmates to do. [00:27:59] Speaker 04: Look at the merits of their case before filing, but when there's a pattern of doing this that is certainly strong evidence that the underlying reason for the dismissal is this gamesmanship piece where the inmate did fail to state a claim and The inmate is attempting to avoid that determination [00:28:17] Speaker 04: But really that means that the underlying reason for that dismissal is that underlying determination that he failed to state. [00:28:23] Speaker 03: Just to be clear in terms of what you'd be, if we agree with you, what you'd be saying, the way this should work. [00:28:29] Speaker 03: I guess I take you to be saying if a court screens something and dismisses it and then there's a voluntary dismissal, we're basically going to presume that this was dismissed on the grounds that [00:28:43] Speaker 03: It was frivolous or malicious or failed to state a claim. [00:28:45] Speaker 03: But if the inmate wants to demonstrate otherwise, he would need to say something in the voluntary dismissal to put us on notice of that. [00:28:55] Speaker 03: And then we would have an evaluation as to whether his explanation was genuine or more correct. [00:29:03] Speaker 03: Is that your position? [00:29:04] Speaker 04: Closer, Your Honor. [00:29:08] Speaker 04: The inmate could either express something in the voluntary dismissal itself [00:29:11] Speaker 04: or in the later three strikes litigation because usually when a court's looking at evaluating a strike, it's not going to be in that underlying action. [00:29:19] Speaker 04: It's going to be in a subsequent action where a party meets that initial burden of production to show... Okay, so you would actually allow Mr. Spencer to come in here and say, even though I didn't say anything when I dismissed my case, [00:29:32] Speaker 03: I now want to explain to you why I did that, and I did that because I was in solitary confinement. [00:29:38] Speaker 03: I was unable to file anything further, and that's why I voluntarily dismissed my case. [00:29:43] Speaker 04: Yes, Your Honor, we could allow for that. [00:29:45] Speaker 04: That doesn't need to happen here because there is evidence in the record regarding why Mr. Spencer dismissed, and he didn't present an alternative reason to the district court below. [00:29:54] Speaker 04: when he was litigating his three-strike status here. [00:29:57] Speaker 04: So for purposes of this case, that's, it's clear from the record what the reason for his dismissal was. [00:30:03] Speaker 04: But yes, certainly in the appropriate case when there is no expressed basis for the voluntary dismissal in that underlying action, a district court could consider the plaintiff's proposed proffer as to why the case was dismissed. [00:30:17] Speaker 03: And that's... Okay, we've taken you over your time and I want to see if my colleagues have other questions for you. [00:30:21] Speaker 04: Thank you, Your Honor. [00:30:22] Speaker 03: Thank you. [00:30:32] Speaker 02: May it please the court? [00:30:34] Speaker 02: I just have two points, Your Honor. [00:30:35] Speaker 02: First, I just want to point out that defendants really have no counter to either the text of the PLRA or how Rule 41A1 voluntary dismissals operate. [00:30:46] Speaker 02: The PLRA says that a dismissal is a strike only if the dismissal is on the grounds that it fails to state a claim. [00:30:53] Speaker 02: A voluntary dismissal cannot be on those grounds because the only potential grounds are voluntariness. [00:31:00] Speaker 02: What defendants are left with is looking, as this court has pointed out, is really just a plaintiff's motivations, but neither the text of the PLRA considers the motivations, and that's actually not how Rule 41A1 voluntary dismissals work. [00:31:16] Speaker 02: Such motivations are irrelevant. [00:31:19] Speaker 02: So really, at the end of the day, what we're left with are defendant's policy concerns. [00:31:24] Speaker 02: They point to concerns about potential abuse, and they point out Mr. Spencer as a potential example of such a problem. [00:31:33] Speaker 02: But I think it's worth pointing out that Mr. Spencer actually is not. [00:31:37] Speaker 02: He's been quite a successful plaintiff in the 18 cases that have reached conclusion that Mr. Spencer has litigated. [00:31:46] Speaker 02: He's reached settlement in six of those cases. [00:31:50] Speaker 02: So not only, Your Honors, has he made it past a screening determination in a vast majority of his case, but he has settled with defendants in 30% of the cases in which he's litigated. [00:32:03] Speaker 02: Your Honors, there are simply no policy concerns that we have in the record worth addressing, and if there are such concerns, that's a matter for Congress, because the text here is clear. [00:32:14] Speaker 02: Rule 41A1, voluntary dismissals, cannot constitute strikes. [00:32:18] Speaker 02: We ask that you reverse. [00:32:20] Speaker 03: Thank you. [00:32:21] Speaker 03: We thank both counsel for the briefing and argument, and this case is submitted.