October 21, 2013 4th Circuit published opinion

Blakely v Wards

Blakely sought en banc reconsideration of the denial of his application to proceed in froma pauperis on the grounds that dismissals done at summary judgment are not strikes under 28 USC 1915(g). The Court, 9-5, denied his motion. The eight judge majority held that the plain meaning of “dismissal” in 28 USC 1915(g) includes summary judgment dismissals of frivolous, bad faith and claims which fail to state a claim as the dictionary definition of “dismissal” includes termination before trial, 1915(g) is a limitation of litigant rights and this definition serves the purpose of the statute by limiting abusive litigation. The majority noted its holding is consistent with the approach taken in other circuits in that it looks to the substance of the decision not the procedural posture. Four members of the majority added a concurrence arguing that Blakely had filed dozens of suits on an almost annual basis which were frivolous on their face. Thus, regardless of the meaning of “dismiss” the court can exercise discretion and deny the application to deter abusive filings.  One judge concurred in judgment rejecting the majority’s position on the meaning of “dismissed”, but, adopting the approach of the concurrence. Four judges, joined in part by a fifth, dissented arguing that “dismissed” in 1915(g) applies to actual dismissals made on motion or sua sponte and does not include summary judgment decisions. The dissent further argued that there is no basis to use a litigant’s past abusive conduct to deny IFP status in a current nonabusive case. One judge added a dissent agreeing on the definition of “:dismissed” as excluding summary judgment, arguing there is discretion to punish an abusive litigant, but, argued Blakely is not an abusive litigant.

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