On June 8, 2020, the Supreme Court decided Lomax v. Ortiz-Marquez, No. 18-8369, holding that the Prison Litigation Reform Act of 1995 (PLRA) prevents a prisoner who has had at least three lawsuits dismissed because they were frivolous, malicious, or failed to state a claim upon which relief could be granted from bringing another suit without paying the requisite filing fee, regardless of whether the prior dismissals were with or without prejudice.

The PLRA precludes a prisoner from suing without paying a filing fee (otherwise known as proceeding in forma pauperis or “IFP”) if any court has previously dismissed three or more of his or her suits as frivolous or malicious or because they failed to state a claim upon which relief could be granted. See 28 U.S.C. § 1915(g).

A Colorado prison inmate had three prior lawsuits against corrections officers, prosecutors, and judges dismissed. Each was dismissed for failure to state a claim, but only one was dismissed with prejudice. The prisoner filed a new lawsuit and asked to proceed IFP under § 1915(g), but the district court denied the prisoner’s request because of the dismissals of his three prior lawsuits for failure to state a claim. The Tenth Circuit Court of Appeals upheld the district court’s decision that § 1915(g) precluded the inmate from proceeding IFP even though two of the three earlier dismissals were without prejudice.

The Supreme Court affirmed. The Court held that any dismissal premised on frivolousness, maliciousness, or failure to state a claim for which relief may be granted satisfies § 1915(g)’s requirements, regardless of whether the dismissal is with prejudice. In so doing, the Court rejected the inmate’s request to read into § 1915(g) a requirement that the prior dismissals be with prejudice based on Federal Rule of Civil Procedure 41(b), and it confirmed that courts have authority under the PLRA to dismiss suits with or without prejudice.

Justice Kagan announced the judgment of the unanimous Court in which Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Sotomayor, Gorsuch, and Kavanaugh joined, and in which Justice Thomas joined as to all but footnote 4.