Lomax v. Ortiz-Marquez
The Supreme Court ruled unanimously that a prisoner lawsuit dismissed without prejudice for failing to state a legal claim still counts as a 'strike' under the federal three-strikes rule, which bars repeat filers from getting court fees waived.
The decision settles a long-running split among federal courts and makes it harder for prisoners with histories of unsuccessful lawsuits to continue filing for free, regardless of whether earlier dismissals were labeled permanent or not.
“This case begins, and pretty much ends, with the text of Section 1915(g).”
The majority signals the case turns entirely on the plain meaning of the statute's words.
How it got here: The federal district court denied Lomax's fee-waiver request; the Tenth Circuit affirmed; Lomax asked the Supreme Court to resolve a circuit split on the question, and the Court agreed to hear it.
The Case in Depth
What happened
Arthur Lomax, a Colorado prisoner, was expelled from his prison's sex-offender treatment program and sued the officials responsible. He asked the court to waive the $400 filing fee because he couldn't afford it. Prison officials pointed out that Lomax had already brought three prior lawsuits that were dismissed for failing to state a valid legal claim — two of them without prejudice, meaning he could have refiled. Lomax argued that those two dismissals shouldn't count as "strikes" under the three-strikes rule because they weren't permanent.
The question before the Court
Does a prisoner lawsuit dismissed without prejudice count as a "strike" under the federal three-strikes rule that limits prisoners' ability to file free lawsuits?
The Court's answer
Yes — a dismissal without prejudice for failing to state a claim counts as a strike under the Prison Litigation Reform Act's three-strikes rule just as much as a permanent dismissal does. The Court said the statute's text is clear: it applies to any dismissal for failure to state a claim, full stop. Whether the dismissal was labeled permanent or left the door open for refiling is irrelevant. A strike depends only on the reason a case was thrown out, not on what that dismissal does to a prisoner's future ability to refile.
The Court also rejected Lomax's argument that a procedural rule treating unspecified dismissals as permanent made "dismissed for failure to state a claim" a legal term of art meaning only permanent dismissals. The Court reasoned that rule exists precisely because the phrase covers both types of dismissals, which undermined rather than supported Lomax's reading.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Prisoners who have had three lawsuits dismissed — even cases thrown out "without prejudice," meaning they could technically be refiled — will be blocked from filing future lawsuits without paying the filing fee upfront. This affects inmates who rely on fee waivers to bring claims about prison conditions, civil rights, or other grievances.
What changes now
Lomax cannot proceed without paying the filing fee and must either pay it or qualify for the narrow imminent-danger exception to continue his lawsuit. More broadly, the ruling settles the question for all federal courts nationwide — a dismissal without prejudice for failure to state a claim is a strike, and courts that had been ruling otherwise must now follow the same approach.
What this does not decide
The Court did not decide whether dismissals under Heck v. Humphrey — a rule that bars certain civil rights suits until a prisoner's conviction is overturned — count as strikes for failure to state a claim. The Court also left open how the three-strikes rule interacts with situations where courts grant prisoners leave to amend their complaints rather than dismissing outright.
Concurrences and dissents
Concurrence in part — Justice Thomas
Justice Thomas joined the full opinion except footnote 4. That footnote explains that when a court grants a prisoner leave to amend a deficient complaint rather than dismissing it outright, no strike accrues because the suit is still ongoing. Justice Thomas did not author a separate opinion explaining his non-joinder of that footnote.
How the Court got there
The legal reasoning, step by step
- The Court started with the plain text of 28 U.S.C. § 1915(g), which counts as a strike any case 'dismissed on the grounds that it... fails to state a claim upon which relief may be granted.' The Court found that language broad enough to cover all dismissals for failure to state a claim — with or without prejudice — because the text makes no distinction between the two.
- Reading the provision to apply only to permanent dismissals would require inserting the words 'with prejudice' into a statute where Congress left them out. The Court held it is not free to narrow a law's reach by adding words Congress chose to omit.
- The PLRA contains three other provisions using the same 'dismissed for failure to state a claim' language, and everyone agreed those provisions allow courts to dismiss suits without prejudice. Using the same phrase to mean something different in the three-strikes rule — just paragraphs away — would create an internal contradiction the Court rejected under the rule that a single statutory phrase should have a consistent meaning throughout the same law.
- Lomax pointed to Federal Rule of Civil Procedure 41(b), which presumes that an unspecified dismissal for failure to state a claim is permanent, arguing this made the phrase a term of art covering only permanent dismissals. The Court flipped this argument: Rule 41(b) exists precisely because 'dismissed for failure to state a claim' covers both permanent and non-permanent dismissals, creating an ambiguity that needed a default rule to resolve. The rule's existence proved Lomax's reading was wrong.
- Lomax also argued that the other two strike-triggering grounds — 'frivolous' and 'malicious' suits — both describe permanently defective claims, so 'failure to state a claim' should be read the same way. The Court rejected the factual premise (courts do sometimes dismiss frivolous suits without prejudice) and rejected the interpretive move itself: the whole point of the PLRA was to expand the strikes rule beyond the pre-existing frivolous/malicious standard, so harmonizing 'failure to state a claim' with those older terms would undo Congress's deliberate expansion.