USCA4 Appeal: 22-7228      Doc: 42           Filed: 09/16/2024   Pg: 1 of 13




                                               PUBLISHED

                               UNITED STATES COURT OF APPEALS
                                   FOR THE FOURTH CIRCUIT


                                                No. 22-7228


        JONATHAN EUGENE BRUNSON,

                      Plaintiff-Appellant,

               v.

        JOSH STEIN; BARRY H. BLOCH; JESSICA B. HELMS; ELIZABETH B. JENKINS;
        BENJAMIN S. GURLITZ; CHARLTON L. ALLEN; PHILIP A. BADDOUR, III;
        YOLANDA K. STITH; MYRA L. GRIFFIN; KENNETH L. GOODMAN; JAMES C.
        GILLEN; TAMMY R. NANCE; CHRISTOPHER C. LOUTIT; BRIAN R. LIEBMAN;
        AMANDA M. PHILLIPS; KIMBERLEE FARR; BRITTANY A. PUCKETT; EMILY M.
        BAUCOM,

                      Defendants-Appellees.


        Appeal from the United States District Court for the Eastern District of North Carolina, at
        Raleigh. Louise W. Flanagan, District Judge. (5:21-CT-3063-FL)



        Argued: March 21, 2024                                   Decided: September 16, 2024


        Before NIEMEYER, RICHARDSON, and HEYTENS, Circuit Judges.


        Motion denied by published opinion. Judge Richardson wrote the opinion, in which Judges
        Niemeyer and Heytens joined.


        ARGUED: Jennifer Franklin, WILLIAM & MARY LAW SCHOOL, Williamsburg,
        Virginia, for Appellant. Sripriya Narasimhan, NORTH CAROLINA DEPARTMENT OF
        JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Jim Davidson, Third Year
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        Law Student, Vivian Li, Third Year Law Student, Brendan Clark, Third Year Law Student,
        Supreme Court & Appellate Litigation Clinic, WILLIAM & MARY LAW SCHOOL,
        Williamsburg, Virginia, for Appellant. Joshua H. Stein, Attorney General, Ryan Y. Park,
        Solicitor General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
        Carolina, for Appellees.




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        RICHARDSON, Circuit Judge:

               It is sometimes said that a judge’s duty is to “call balls and strikes.” Lomax v. Ortiz-

        Marquez, 

 (2020). This case actually requires us to do so. The Prison

        Litigation Reform Act’s (PLRA) “three-strikes” rule bars prisoners from suing in forma

        pauperis if, while incarcerated, they filed three or more federal civil actions or appeals that

        were dismissed for frivolity, malice, or failure to state a claim upon which relief may be

        granted. 

(g). One knuckleball has long divided umpires: whether a

        dismissal under Heck v. Humphrey, 

 (1994), is a PLRA strike. Heck held that

        a federal court may not entertain a state prisoner’s 

 suit for money

        damages if that suit’s success would necessarily undermine the legality of his conviction

        or confinement, unless the prisoner has first “invalidated” the legality of his confinement.

        

 at 486–87. Today, we hold that a Heck dismissal is necessarily for failure to state a

        claim and thus counts as a PLRA strike.

        I.     Background

               The issue here is a legal one, so few facts are needed. Jonathan Brunson is

        imprisoned in North Carolina pursuant to a sexual-abuse conviction. While incarcerated,

        Brunson filed this § 1983 action naming the North Carolina Attorney General and

        seventeen other state officials as defendants. He sought declaratory relief, injunctive relief,

        and compensatory and punitive damages.

               In his complaint, Brunson acknowledged that he had previously filed four § 1983

        suits that were all dismissed under Heck. Nevertheless, he moved to proceed in forma

        pauperis. The district court initially granted Brunson’s request. But it later vacated that

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        order after deciding that Brunson was precluded from proceeding in forma pauperis by the

        PLRA’s three-strikes rule. In reaching this decision, the court found that Brunson’s prior

        dismissals under Heck were for failure to state a claim upon which relief may be granted.

        So Brunson prepaid the $402 fee to file suit. Later, for reasons not relevant here, the district

        court dismissed his § 1983 complaint.

               Brunson timely appealed. He then applied to proceed on appeal without prepaying

        fees. In the application, Brunson argued that he does not have any PLRA strikes because

        Heck dismissals do not count as strikes under the PLRA. Before resolving this question,

        we placed Brunson’s case in abeyance pending another appeal in which this issue might

        have been resolved. Pitts v. South Carolina, 

 (4th Cir. 2023). But that case

        ultimately reserved the question. See 

 at 148 n.3. So we calendared Brunson’s appeal

        for argument on whether he should be permitted to proceed on appeal in forma pauperis.1

        II.    Discussion

               Concerned by the “flood of nonmeritorious” prisoner litigation in federal courts,

        Jones v. Bock, 

 (2007), Congress enacted the PLRA’s three-strikes rule

        to “filter out the bad claims filed by prisoners and facilitate consideration of the good,”

        Coleman v. Tollefson, 

 (2015) (alterations and citation omitted). The

        rule bars a prisoner from suing in forma pauperis—that is, without first paying the filing

        fee—if he

               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

               1
                Whether the dismissal under Heck is a PLRA strike is a legal question that we
        review de novo. Blakely v. Wards, 

 (4th Cir. 2013) (en banc).
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               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.

        

(g). A prisoner who receives three strikes must prepay the filing fee

        before proceeding, just like any other plaintiff. See 

(a).

               This case requires us to decide whether an action dismissed under Heck is dismissed

        for “fail[ure] to state a claim upon which relief may be granted.” If so, such a dismissal

        counts as a strike under the PLRA. § 1915(g).2 In Heck, the Supreme Court held that “in

        order to recover damages for . . . harm caused by actions whose unlawfulness would render

        [his] conviction or sentence invalid, a § 1983 plaintiff must prove that [his] conviction or

        sentence has been” invalidated. 512 U.S. at 486–87. This is known as the “favorable-

        termination requirement,” and suits dismissed for failing to meet it are said to be “Heck-

        barred.” Before bringing this § 1983 suit, Brunson unsuccessfully filed four § 1983 suits,

        each of which was found to be Heck-barred. So if Heck dismissals count as strikes under

        the PLRA, then Brunson cannot proceed in forma pauperis on appeal, as he falls within

        the three-strikes rule.

               This question is the subject of an entrenched circuit split. See Lomax, 

 n.2 (noting the split but declining to reach the issue). The Third, Fifth, Tenth, and

        D.C. Circuits have held that Heck dismissals are necessarily for failure to state a claim. See

        Garrett v. Murphy, 

, 427 (3d Cir. 2021); Colvin v. LeBlanc, 

, 497–



               2
                 Defendants do not argue that Brunson’s prior Heck-barred suits were dismissed
        because they were frivolous or malicious. Nothing in this opinion forecloses this as an
        alternative ground for finding a strike in future cases.
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        99 (5th Cir. 2021); Smith v. Veterans Admin., 

 (10th Cir. 2011); In re

        Jones, 

 (D.C. Cir. 2011). The Second, Seventh, and Ninth Circuits,

        meanwhile, have held, to varying degrees, that Heck dismissals are not, or sometimes are

        not, strikes under the PLRA. See Cotton v. Noeth, 

, 257 (2d Cir. 2024) (holding

        that “whether a Heck dismissal qualifies as a strike depends on . . . whether the dismissal

        turned on the merits or whether it was simply a matter of sequencing or timing”);

        Washington v. L.A. Cnty. Sheriff’s Dep’t, 

 (9th Cir. 2016) (holding that

        a Heck dismissal counts as a strike only when “Heck’s bar to relief is so obvious from the

        face of the complaint, and the entirety of the complaint is dismissed for a qualifying reason

        under the PLRA”); Mejia v. Harrington, 

 (7th Cir. 2013) (holding

        that Heck “deal[s] with timing rather than the merits of litigation”).3

               Until now, our Circuit had not waded into this conceptual morass.4 Today, we

        conclude that Heck’s favorable-termination requirement is an element of the type of § 1983



               3
                 Whether the First and Eleventh Circuits classify a Heck dismissal as one for failure
        to state a claim is unclear. Compare O’Brien v. Town of Bellingham, 

        (1st Cir. 2019) (stating that “[w]hether Heck bars § 1983 claims is a jurisdictional
        question”), with Figueroa v. Rivera, 

 (1st Cir. 1998) (describing the
        favorable-termination requirement as an “element” of plaintiff’s claim); Harrigan v. Metro
        Dade Police Dep’t Station #4, 

 (11th Cir. 2020) (explaining that the
        circuit’s precedents had previously “said in dicta that Heck strips a federal court of
        jurisdiction” but also that “Heck deprives the plaintiff of a cause of action,” and ultimately
        declining to decide the issue).
               4
                  We once suggested that Heck might be a variant of the Rooker-Feldman doctrine.
        Jordahl v. Democratic Party of Va., 

, 201–02 (4th Cir. 1997). But this
        discussion occurred in dicta that was not necessary to the case’s disposition. See Wideman
        v. Innovative Fibers LLC, 

, 497 n.7 (4th Cir. 2024). So we are not bound by
        this statement in Jordahl.
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        claims Heck identified. Heck, 

. Accordingly, we hold that a dismissal

        under Heck is necessarily a dismissal for “failure to state a claim upon which relief may be

        granted” and qualifies as a PLRA strike. § 1915(g).

               Start with Heck’s holding. Under Heck, for certain damages claims having to do

        with convictions or sentences, “a § 1983 plaintiff must prove that the conviction or

        sentence has been . . . invalidated.” 512 U.S. at 486–87. If a plaintiff’s “claim for

        damages” flunks this requirement, then that claim “is not cognizable under § 1983.” Id. at

        487. That is, if a plaintiff cannot show invalidation, we “deny the existence of a cause of

        action.” Id. at 489.

               Next consider why Heck denied the existence of a cause of action. It’s because a

        Heck-barred plaintiff has failed to “allege[] and prove[]” an element of that cause of action.

        Heck, 

. This follows from basic principles about causes of action. A cause

        of action is the “group of operative facts”—also known as “elements”—“giving rise to one

        or more bases for suing.” Cause of Action, Black’s Law Dictionary (12th ed. 2024). A

        plaintiff has a cause of action (that is, his action “accrues”) if it is “complete and present.”

        Corner Post, Inc. v. Bd. of Govs. of Fed. Rsrv. Sys., 

, 2451 (2024). And a

        cause of action is complete and present if all its elements exist. 

 Rephrased in the

        negative, a cause of action does not exist only if one or more elements is missing. That

        means for a Heck-barred plaintiff to lack a cause of action, an element must be missing.

        And Heck tells us what is missing: favorable termination. See 512 U.S. at 489–90 (“[A]

        § 1983 cause of action for damages attributable to an unconstitutional conviction or

        sentence does not accrue until the conviction or sentence has been invalidated.”).

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               Heck’s reasoning confirms this conclusion. A § 1983 claim generally derives its

        “elements of damages and the prerequisites for their recovery” from whatever common-

        law tort is most analogous to that § 1983 claim. 512 U.S. at 483–86 (citation omitted).5

        And as Heck reasoned, a § 1983 claim calling into question the validity of one’s conviction

        or confinement requires favorable termination because favorable termination is an

        “element” of malicious prosecution. Id. at 484. In Heck’s language, “[o]ne element that

        must be alleged and proved in a malicious prosecution action is termination of the prior

        criminal proceeding in favor of the accused.” Id. (emphasis added). So a plaintiff must

        first allege, and ultimately prove, that same element for a similar claim to be cognizable

        under § 1983. See id. at 489–90. Without the element, the plaintiff lacks a “complete and

        present cause of action” under § 1983. McDonough v. Smith, 

 (2019)

        (quotation marks and citations omitted); see Heck, 

.6

               For this reason, a Heck-barred plaintiff fails to state a claim upon which relief may

        be granted. A plaintiff who has no “cause of action,” Heck, 

, has no claim




               5
                 As we have recognized, § 1983 does not provide its own elements; instead, § 1983
        is a vehicle for vindicating claims that derive their elements from elsewhere. “To identify
        the elements . . . for a § 1983 claim, we ‘look first to the common law of torts’ to identify
        the most analogous tort.” Smith v. Travelpiece, 

, 883–84 (4th Cir. 2022)
        (quoting Manuel v. City of Joliet, 

 (2017)). Once we have found “that
        common-law analogy . . ., the court incorporates its elements” into the § 1983 action. Id.
        at 884.
               6
                 We have described Heck this way before. See Travelpiece, 

        (describing Heck as “incorporating the favorable-termination element for malicious
        prosecution”).
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        either.7 The Supreme Court has recognized as much: If a plaintiff fails to plead a required

        element and his claim is thus “not cognizable under § 1983,” the appropriate remedy is

        dismissal for failure to state a claim. Estelle v. Gamble, 

, 107–08 (1976); see

        also Skinner v. Switzer, 

, 533–37 (2011) (reaffirming that a plaintiff cannot

        “proceed under § 1983” when his claim is Heck-barred). Put another way, a Heck-barred

        plaintiff cannot “survive a motion to dismiss” because he cannot “plausibly allege facts

        that, if proven, would be sufficient to establish each element of the claim.” Harvey v. Cable

        News Network, Inc., 

, 268–69 (4th Cir. 2022) (citations omitted) (emphasis

        added). All told, the upshot of Heck’s holding—that certain plaintiffs have a cause of

        action only if they show favorable termination—is that when such a plaintiff does not show

        favorable termination, that plaintiff has no cause of action and thus fails to state a claim.8

               Rather than treat Heck as defining an element of certain causes of action under

        § 1983, Brunson urges us to adopt the Ninth Circuit’s holding in Washington v. L.A. Cnty.

        Sheriff’s Dep’t, 

 (9th Cir. 2016). There, our sister circuit held that Heck’s

        favorable-termination requirement is more like an affirmative defense than an element. 

. Accordingly, the Ninth Circuit recognizes that a Heck dismissal is only for failure


               7
                See, e.g., Claim, Black’s Law Dictionary (6th ed. 1990) (defining “claim” as “[a]
        cause of action”).
               8
                 For this reason, Heck was not about subject-matter jurisdiction. The absence of a
        complete cause of action does not deprive a federal court of subject-matter jurisdiction.
        Bell v. Hood, 

 (1946) (“Jurisdiction . . . is not defeated . . . by the
        possibility that the averments might fail to state a cause of action on which petitioners could
        actually recover.”). Since Heck “den[ied] the existence of a cause of action” absent the
        favorable-termination element, 

, the lack of that element “does not implicate
        subject-matter jurisdiction,” Steel Co. v. Citizens for a Better Env’t, 

 (1998).
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        to state a claim “if there exists an ‘obvious bar to securing relief on the face of the

        complaint.’” Id. at 1056; see Rivera v. Peri & Sons Farms, Inc., 

 (9th

        Cir. 2013) (“When an affirmative defense is obvious on the face of a complaint, . . . a

        defendant can raise that defense in a motion to dismiss.”).

               But each reason Washington gives conflicts with Heck itself. To begin, Washington

        rationalized that the favorable-termination requirement can’t be an element of a cause of

        action because it appears nowhere in § 1983’s text. 

. But this argument

        misapprehends Heck and § 1983 alike.           Heck didn’t purport to draw the favorable-

        termination requirement from § 1983’s text; it drew it from an analogy to malicious

        prosecution. 512 U.S. at 483–86. And for good reason. By its text, § 1983 requires

        elements outside the statute itself. Section 1983 states that “Every person who, under color

        of [state law], . . . depriv[es a party] of any rights . . . secured by the Constitution and laws,

        shall be liable to the party . . . .” (emphasis added). In other words, the statute “is not itself

        a source of substantive rights, but a method for vindicating federal rights elsewhere

        conferred by those parts of the United States Constitution and federal statutes that it

        describes.” Baker v. McCollan, 

, 144 n.3 (1979). Section 1983’s text thus

        contemplates that any cause of action brought using this “method,” 

 will necessarily

        require elements not enumerated in the statute. And when the cause of action resembles

        the common law tort of malicious prosecution, favorable termination is an element under

        § 1983 just as it was an element at common law. See, e.g., Carter v. Greenhow, 

, 322–23 (1885); Thompson v. Clark, 

, 42–44 (2022); see also supra note

        5.

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               Next, Washington reasons that favorable termination cannot be an element because

        it’s only required if the court makes the “threshold legal determination . . . that the

        requested relief would undermine the underlying conviction.” 

. This is

        partly true. Heck said that favorable termination is required only if a court determines that

        “a judgment in favor of the plaintiff would necessarily imply the invalidity of his

        conviction or sentence.” 

. But that doesn’t mean a favorable termination

        is not an element of certain § 1983 claims. As just explained, when a plaintiff alleges a

        violation of a constitutional right under § 1983, we “look to the elements of the most

        analogous tort as of 1871 when § 1983 was enacted.” Thompson, 

; see Heck,

        

. That is how we know what elements the plaintiff must plead and prove.

        So the “threshold inquiry” Washington refers to is both indispensable and logically prior

        to the elements: the court must determine what kind of action the plaintiff is bringing in

        order to determine what elements he’s required to “allege[]” in the complaint and ultimately

        “prove[]” on the merits. Heck, 

.

               Third, Washington reads Heck as mandating dismissal not because a plaintiff fails

        to plead a necessary element, but as “a matter of ‘judicial traffic control’” that “most closely

        resembles” an affirmative defense: “the mandatory administrative exhaustion of PLRA

        claims.” Washington, 

. But this too runs headlong into Heck. Heck

        specifically and repeatedly said that § 1983 does not have an exhaustion requirement and

        that it was not creating one. 

. And in disclaiming any notion that

        it was “engraft[ing] an exhaustion requirement upon § 1983,” the Court explicitly said that

        it was instead “deny[ing] the existence of a cause of action.” Id. at 489. So even if

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        dismissals for failure to state a claim sometimes function as “judicial traffic control,”

        Heck’s stoplight, by its very language, isn’t akin to an exhaustion requirement.

               Last, Washington’s conclusion is as hard to reconcile with Heck as the reasons

        Washington gives for it. Heck made apparent that the plaintiff bears the burden of alleging

        and proving favorable termination. Id. at 486–87 (“[I]n order to recover damages for

        allegedly unconstitutional conviction or imprisonment, . . . a § 1983 plaintiff must prove

        that the conviction or sentence has been [invalidated].” (emphasis added)); id. at 486–87

        (“[T]he complaint must be dismissed unless the plaintiff can demonstrate that the

        conviction or sentence has already been invalidated.” (emphasis added)). Generally,

        plaintiffs bear the burden of proving elements. Cf. Ashcroft v. Iqbal, 

        (2009). They don’t bear the burden of alleging or proving the absence of affirmative

        defenses. See Goodman v. Praxair, Inc., 

 (4th Cir. 2007). Defendants

        bear that burden.

               In sum, everything in Heck points to the conclusion that favorable termination is an

        element of a plaintiff’s cause of action under § 1983. Arguments to the contrary don’t hold

        water. And without a cause of action, a plaintiff has no claim upon which relief may be

        granted. So the dismissal of an action under Heck is a dismissal for failure to state a claim

        and thus a strike under the PLRA.

                                       *             *              *

               “[T]o be a good judge and a good umpire, you [] have to follow the established rules

        and the established principles.”    Brett M. Kavanaugh, The Judge as Umpire:             Ten

        Principles, 

, 686 (2016). Heck established the rule that a plaintiff

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        who asserts a damages claim challenging his conviction or confinement fails to state a

        claim unless he alleges and proves favorable termination. Since Brunson has filed at least

        three prior actions that were dismissed as Heck-barred, our role as umpires is to strike him

        out under the PLRA. Brunson’s motion to proceed in forma pauperis is thus

                                                                                         DENIED.




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