17‐2441‐pr William Escalera, Jr. v. Samaritan Village, et al

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2019 (Argued: September 10, 2019 Decided: September 12, 2019) Docket No. 17‐2441‐pr

WILLIAM ESCALERA, JR., Plaintiff‐Appellant, ‐ against ‐ SAMARITAN VILLAGE, MENʹS SHELTER, NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, COUNSELOR NELSON BROWN, POLICE OFFICER CLIFF MUELLER, POLICE OFFICER BRIAN DEVITA, YONG LI, Defendants‐Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Before: WESLEY, CHIN, and BIANCO, Circuit Judges.

Appeal from an order of dismissal of the United States District Court for the Southern District of New York (McMahon, C.J.), dismissing plaintiff‐ appellantʹs pro se 42 U.S.C. § 1983 complaint pursuant to the ʺthree strikesʺ provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). Plaintiff‐ appellant contends that the district court erred in ruling that he was barred from proceeding in forma pauperis and in dismissing the complaint on the basis that he accrued three strikes.

VACATED and REMANDED.

ERICK M. SANDLER, Sylvia‐Rebecca Gutierrez, Day Pitney LLP, Hartford, Connecticut, for Plaintiff‐ Appellant.1

PER CURIAM: Plaintiff‐appellant William Escalera, Jr. appeals the district courtʹs order sua sponte dismissing his pro se 42 U.S.C. § 1983 complaint pursuant to the ʺthree strikesʺ provision of the Prison Litigation Reform Act (the ʺPLRAʺ), 28 U.S.C. § 1915(g). The district court issued an order of dismissal under § 1915(g) on June 22, 2017. Judgment was entered June 22, 2017. For the reasons explained below, we conclude that the district court erred in determining that Escalera had accrued three strikes under § 1915(g). Accordingly, we vacate the district courtʹs

The PLRA ʺthree‐strikesʺ provision provides that: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

ʺThe district courtʹs decision that a certain type of dismissal constitutes a ʹstrikeʹ for purposes of § 1915(g) is an interpretation of a federal statute . . . which this Court reviews de novo.ʺ Tafari v. Hues, 473 F.3d 440, 442 (2d Cir. 2007) (alteration, and internal citation and quotation marks omitted).

Here, the district court relied on Escalera v. Graham, No. 08‐CV‐412 GLS‐GHL, 2008 WL 4181741 (N.D.N.Y. May 27, 2008), to conclude that Escalera had three strikes under the PLRA. In that case, the court identified five strikes.

Upon independent review of those five strikes, however, we conclude that three are not strikes.2 The plain language of § 1915(g) defines a strike as ʺan action or appealʺ that was dismissed on an enumerated ground, not as an individual claim that was dismissed as frivolous, malicious, or for failure to state a claim. 28 U.S.C. § 1915(g) (emphasis added). The majority of circuits that have addressed this issue agree that strikes are limited to ʺactions and appeals,ʺ and that dismissal of some but not all of the multiple claims in a complaint on a § 1915(g) ground cannot constitute a strike. See Brown v. Megg, 857 F.3d 287, 291 (5th Cir. 2017) (ʺImposing a strike only when the action itself is dismissed for one or more of the qualifying reasons is consistent with the statuteʹs balance between deterring frivolous filings while maintaining access to the courts for facially valid claims.ʺ (emphasis added)); Byrd v. Shannon, 715 F.3d 117, 125 (3d Cir. 2013) (holding a prisonerʹs ʺentire action or appealʺ must be dismissed on a § 1915(g)

Turning to Escaleraʹs cases that the district court in Escalera v. Graham identified as strikes, we agree with Escalera that of the five cases, the following three are not strikes.

1. Escalera v. Selsky, 06‐CV‐0837 (N.D.N.Y. Mar. 8, 2007) The district court dismissed this action because Escalera failed to comply with an order to file a ʺlegibly written (typewritten, printed or reproduced) and double spacedʺ amended complaint. This Court has held that certain types of procedural dismissals do not constitute strikes under the PLRA.

See Snider v. Melindez, 199 F.3d 108, 111 (2d Cir. 1999) (holding that § 1915(g) does not apply to suits dismissed ʺfor failure to comply with a procedural prerequisiteʺ); see also Tafari, 473 F.3d at 443 (refusing to treat a premature appeal as a strike and noting that the PLRA ʺwas designed to stem the tide of egregiously meritless lawsuits, not those temporarily infected with remediable procedural . . . flawsʺ). Because this alleged second strike was a dismissal for a remediable procedural defect (illegible handwriting) and not a dismissal on a § 1915(g) ground, it does not count as a strike.

2. Escalera v. Charwand, 04‐CV‐0983 (N.D.N.Y. Mar. 12, 2008) Escalera argues that the district court erroneously classified this case as a strike because it was resolved at summary judgment and the district court did not invoke any grounds in § 1915(g). When evaluating a dismissal at summary judgment, courts have held that an inquiry into the basis of the district courtʹs dismissal is required to determine whether the dismissing court deemed the action frivolous, malicious, or failing to state a claim. See Brown, 857 F.3d at 290‐92 (holding that dismissal for failure to state a claim and grant of summary judgment for lack of evidence was not a strike); El‐Shaddai v. Zamora, 833 F.3d 1036, 1044 (9th Cir. 2016) (holding that a grant of summary judgment for lack of evidence was not a strike because it was not based on an enumerated ground under § 1915(g)); Blakely v. Wards, 738 F.3d 607, 618 (4th Cir. 2013) (en banc) (ʺ[A]n actionʹs dismissal [at summary judgment] as frivolous, malicious, or failing to state a claim, and not the caseʹs procedural posture at dismissal, determines whether the dismissal constitutes a strike.ʺ).

Here, after evaluating the underlying basis for the district courtʹs grant of summary judgment, we agree that this case does not qualify as a strike.

The magistrate judgeʹs report and recommendation ‐‐ accepted in its entirety by

the district court ‐‐ held that (1) Escaleraʹs First Amendment claim was ʺdeficient as a matter of lawʺ because he did not engage in protected speech; (2) his procedural due process claim failed for lack of evidence; and (3) his equal protection claim failed because there was nothing in the amended complaint or the record to reflect any disparate treatment. Appʹx at 128. Notably, the district court considered each of Escaleraʹs claims, which, taken as true, stated a claim for relief, but granted summary judgment after evaluating the record and determining that ʺthe evidence did not support the claim.ʺ El‐Shaddai, 833 F.3d at 1045. The district court did not find that the claims were frivolous or malicious.

In short, because the district court did not grant summary judgment against Escalera on a ground enumerated in § 1915(g), this case does not qualify as a strike.

3. Escalera v. N.Y.C. Hous. Depʹt, 05‐CV‐1446 (S.D.N.Y. Feb. 4, 2005) Escalera argues that this case is not a strike because the district court dismissed some claims for failure to state a claim and others for lack of subject matter jurisdiction.4 We agree. It is undisputed that a dismissal for ʺfail[ure] to

reach this argument because we find that the district court erroneously counted this mixed dismissal as a strike.

Compare El‐Shaddai, 833 F.3d at 1043 (ʺif a claim is dismissed for failure to state a claim under rule 12(b)(6), it counts as a strike for PLRA purposesʺ), with Byrd, 715 F.3d at 124 (acknowledging the difference in language between § 1915(g) and Rule 12(b)(6) and crediting ʺsome persuasive effectʺ to the argument that § 1915(g) and Rule 12(b)(6) are distinct for purposes of counting strikes under the PLRA). We need not reach this question because none of Escaleraʹs previous cases were complete dismissals under Rule 12(b)(6).

We discern no basis to make an exception to the general rule for dismissals for lack of subject matter jurisdiction. On the other hand, while dismissal based on subject matter jurisdiction is not an enumerated ground under § 1915(g), we recognized in Tafari that there may be cases where the prisonerʹs argument for subject matter jurisdiction is so baseless that the action or appeal may be considered ʺfrivolous.ʺ See Tafari, 473 F.3d at 444 (noting that a ʺjurisdictionally barred appeal [that] is a part of a broader pattern of vexatious conduct on the part of the litigantʺ might be considered frivolous). Here, the district court did not determine that Escaleraʹs present claims were frivolous or malicious.

The PLRA was enacted to deter frivolous prisoner lawsuits and appeals ‐‐ not potentially meritorious state claims filed in the wrong court by a pro se and incarcerated litigant. See id. at 443‐44 (distinguishing between frivolous prisoner lawsuits, which are subject to the PLRA, and jurisdictionally defective ones, which are not). This is particularly true here, where the district court did not reach the merits of Escaleraʹs state claim or deem it defective on § 1915(g) grounds. See Washington, 833 F.3d at 1058 (ʺDismissal on jurisdictional

grounds occurs not only before an examination of the merits, but curtails such an examination.ʺ).

CONCLUSION For the reasons set forth above, the district courtʹs judgment is VACATED and the case is REMANDED for further proceedings.