Eric D. Holmes v. Marion County Sheriff ’ S Office

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-3032
ERIC D. HOLMES ,
Plaintiff-Appellant,
v.
M ARION C OUNTY S HERIFF ’ S O FFICE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:22-cv-01049-SEB-MPB — Sarah Evans Barker, Judge.
____________________
A RGUED S EPTEMBER 19, 2024 — DECIDED J UNE 20, 2025
____________________
Before R OVNER , HAMILTON , and K IRSCH , Circuit Judges.
K IRSCH , Circuit Judge. In this appeal, we consider whether
dismissals due to certain affirmative defenses incur strikes
under the Prison Litigation Reform Act. We conclude that be-
cause Eric Holmes’s previous lawsuits were dismissed based
on affirmative defenses that were clear from the faces of the
complaints, each dismissal incurred a strike. So we affirm the
dismissal of his current suit.

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2 No. 22-3032
I
Eric Holmes, an Indiana state prisoner, sued Marion
County under 42 U.S.C. § 1983 for unlawful imprisonment in
violation of the Fourteenth Amendment. Holmes moved to
proceed in forma pauperis, but the Prison Litigation Reform
Act of 1995 (PLRA), Pub. L. 104–134, 110 Stat. 1321 (1996), im-
poses restrictions on a prisoner’s ability to do so. Under the
PLRA’s three-strikes rule, a prisoner who has had three civil
actions or appeals dismissed on the grounds that the actions
were “frivolous, malicious, or fail[ed] to state a claim upon
which relief may be granted” may not proceed in forma pau-
peris. 28 U.S.C. § 1915(g); Lomax v. Ortiz-Marquez, 140 S. Ct.
1721, 1723 (2020). This rule differs slightly from the PLRA’s
screening provisions, which in relevant part require district
courts to screen and dismiss cases not just for the reasons
listed in § 1915(g) but also when a prisoner’s complaint seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. §§ 1915(e)(2) & 1915A; 42 U.S.C. § 1997e(c).
The district court found that Holmes had incurred three
strikes and denied his motion. It determined that a case pre-
viously dismissed for failure to state a claim because it was
barred by Heck v. Humphrey, 512 U.S. 477 (1994), counted as
Holmes’s third strike. (Holmes does not contest the validity
of his first two strikes, so we say nothing about them.) Holmes
filed a notice of appeal and moved to proceed in forma pau-
peris on appeal as well. A motions panel of this court denied
that motion. But instead of counting the Heck-dismissed case
as his third strike, the panel instead said that a different case,
dismissed for failure to state a claim in part due to judicial
immunity, was the third strike. This case was also dismissed
in part for failure to state a claim due to deficiently pleaded

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No. 22-3032 3
elements, but that is not dispositive because to incur a strike,
the court must dismiss the entire case on § 1915(g) grounds.
Turley v. Gaetz, 625 F.3d 1005, 1008–09 (7th Cir. 2010). Holmes
eventually obtained pro bono appellate counsel who paid his
appellate filing fee, and his case proceeded to briefing and ar-
gument. The questions before us are whether a case dismissed
as barred by Heck and whether another dismissed because of
judicial immunity count as strikes.
II
A
We first hold that a case dismissed for failure to state a
claim because it was barred by Heck counts as a strike under
§ 1915(g) when the Heck bar is clear from the face of the com-
plaint, which includes documents incorporated into the com-
plaint by reference and public records of which the court may
take judicial notice.
We have long held that Heck is an affirmative defense. Carr
v. O’Leary, 167 F.3d 1124, 1126 (7th Cir. 1999). In general, a
case barred by an affirmative defense is properly dismissed
under Federal Rule of Civil Procedure 12(c) as a judgment on
the pleadings, not under Rule 12(b)(6) for failure to state a
claim upon which relief may be granted. Burton v. Ghosh, 961
F.3d 960, 964–65 (7th Cir. 2020). This might suggest that Heck
dismissals are not strikes because § 1915(g) enumerates as
grounds for a strike the Rule 12(b)(6) standard, not the Rule
12(c) standard. See Haury v. Lemmon, 656 F.3d 521, 522 (7th
Cir. 2011) (per curiam). But there exists a narrow and prag-
matic exception to the general rule that affirmative defenses
lead to dismissals under Rule 12(c) rather than Rule 12(b)(6):
if the affirmative defense is clear from the face of the

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4 No. 22-3032
complaint, the court may dismiss under Rule 12(b)(6) instead.
Jones v. Bock, 549 U.S. 199, 215 (2007). The face of the complaint
refers not just to its four corners but includes sources courts
ordinarily consider when deciding a Rule 12(b)(6) motion,
such as documents incorporated into the complaint by refer-
ence and public records of which the court may take judicial
notice. See Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308,
322 (2007). For simplicity, though, we refer to these materials
collectively as the face of the complaint. See Wells v. Brown, 58
F.4th 1347, 1357 n.2 (11th Cir. 2023) (en banc) (using the same
shorthand). So, when the face of the complaint “admits all the
ingredients of an impenetrable defense,” the plaintiff has
pleaded himself out of court, and the district court may dis-
miss for failure to state a claim under Rule 12(b)(6). Xechem,
Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir.
2004). Thus, if the court ascertains from the face of the com-
plaint that Heck bars a case, it may dismiss the case for failure
to state a claim, and the Heck dismissal counts as a strike. See
Bock, 549 U.S. at 215; cf. Wells, 58 F.4th at 1350 (reaching the
same conclusion for the affirmative defense of failure to ex-
haust); Thompson v. Drug Enf’t Admin., 492 F.3d 428, 438 (D.C.
Cir. 2007) (similar).
That is what happened here. Holmes incurred a strike be-
cause the Heck bar was clear from the face of his complaint,
and the screening court dismissed the case for failure to state
a claim. The record does not tell us precisely what materials
the court used, but the complaint shows that Holmes sued
prosecutors, judges, and jail officials for actions they took in
the lead-up to his conviction—thus violating Heck by impugn-
ing that still-valid conviction. See Heck, 512 U.S. at 486–87
(holding that a prisoner cannot bring a civil suit that would
call into question the validity of his underlying criminal

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No. 22-3032 5
conviction or sentence until he has had that conviction set
aside). And the face of Holmes’s complaint made clear that he
challenged his still-valid conviction. The first page listed his
Bureau of Prisons identification number—establishing that he
was currently imprisoned—and the public dockets in his
other cases would have confirmed his imprisonment was be-
cause of the very conviction he challenged. Because the court
found the Heck bar plain from the face of Holmes’s complaint
and dismissed it for failure to state a claim, Holmes incurred
a strike.
B
Turning to the second question—whether a case dismissed
on judicial immunity grounds incurs a strike—we reach the
same result as above. When the judicial immunity defense is
clear from the face of the complaint, which includes docu-
ments incorporated into the complaint by reference and pub-
lic records of which the court may take judicial notice, dis-
missing the case for failure to state a claim because of judicial
immunity incurs a strike. See Harris v. Harris, 935 F.3d 670, 676
(9th Cir. 2019) (“[T]here are rare cases where an affirmative
defense, such as immunity, may be so clear on the face of the
complaint that dismissal may qualify as a strike for failure to
state a claim.”); Ball v. Famiglio, 726 F.3d 448, 463 (3d Cir. 2013)
(“[D]ismissal based on the immunity of the defendant … con-
stitute[s] a PLRA strike … [if] a court explicitly and correctly
concludes that the complaint reveals the immunity defense on
its face and dismisses the unexhausted complaint under Rule
12(b)(6) or expressly states that the ground for the dismissal
is frivolousness.”), abrogated on other grounds by Coleman v.
Tollefson, 575 U.S. 532 (2015).

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6 No. 22-3032
We recognize that Congress specifically enumerated im-
munity from monetary relief as a reason to screen out a case
under each of the contemporaneously enacted PLRA screen-
ing provisions, see 28 U.S.C. §§ 1915(e)(2) & 1915A; 42 U.S.C.
§ 1997e(c), but that Congress did not include immunity as
grounds for a strike in 28 U.S.C. § 1915(g), even though
§ 1915(g) otherwise mirrors in relevant part the lists in the
screening provisions (frivolousness, maliciousness, and fail-
ure to state a claim). Holmes seizes on this variation to argue
that complaints dismissed at screening because of judicial im-
munity do not incur strikes. Generally, we agree. So do many
of our sister circuits. Ball, 726 F.3d at 460–63; Crump v. Blue,
121 F.4th 1108, 1112–13 (6th Cir. 2024); Castillo-Alvarez v.
Krukow, 768 F.3d 1219, 1220 (8th Cir. 2014) (per curiam); Har-
ris, 935 F.3d at 675–76; Thompson, 492 F.3d at 439; see also
Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1178 (10th Cir.
2011), abrogated on other grounds by Coleman, 575 U.S. at 532.
But not when the judicial immunity defense is clear from the
face of the complaint; in that event, the complaint fails to state
a claim, and dismissal may lead to a strike. See Ball, 726 F.3d
at 463 (recognizing this exception); Harris, 935 F.3d at 676
(same); cf. Hafed, 635 F.3d at 1178 (applying this exception to
a dismissal for frivolousness); Thompson, 492 F.3d at 438 (rec-
ognizing this exception for the affirmative defense of failure
to exhaust).
This narrow exception to the rule avoids rendering the
screening provisions’ enumeration of immunity superfluous.
Immunity—particularly prosecutorial and qualified immun-
ity—is often a contestable issue that requires the court to con-
duct involved legal analysis. When legal analysis is necessary,
the immunity defense is not clear from the face of the com-
plaint—the complaint may not admit all the ingredients of the

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No. 22-3032 7
defense, for instance, or the defense may not be impenetrable.
See Xechem, 372 F.3d at 901. While the district court might still
screen out the complaint after performing such an analysis,
any ensuing dismissal based on immunity would not incur a
strike because the immunity defense would not be so clear
that the complaint fails to state a claim. In this way, the enu-
meration of immunity in § 1915(e)(2), § 1915A, and § 1997e(c)
is not superfluous.
In some cases, a dismissal because of judicial immunity in-
curs a strike for a different reason: frivolousness. The Second
Circuit has determined that such dismissals always constitute
strikes: “The IFP statute does not explicitly categorize as friv-
olous a claim dismissed by reason of judicial immunity, but
we will: [a]ny claim dismissed on the ground of absolute ju-
dicial immunity is ‘frivolous’ for purposes of 28 U.S.C.
§ 1915(g).” Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011). We
do not need to go so far. In our view, a complaint against ju-
dicially immune defendants can certainly be frivolous. But
“classifying a dismissal as a strike depends on the grounds
given for it,” Paul v. Marberry, 658 F.3d 702, 706 (7th Cir. 2011),
so the reason the screening court provides for dismissal must
guide the strike-counting court. If the screening court dis-
misses a case against judicially immune defendants by saying
the case is frivolous, that is a strike. But we will not ourselves
take the step of declaring all dismissals for judicial immunity
frivolous. See, e.g., Mireles v. Waco, 502 U.S. 9, 12–13 (1991)
(deciding a contested issue of judicial immunity); Stump v.
Sparkman, 435 U.S. 349, 364 (1978) (same).
Although a prisoner’s complaint dismissed because of ju-
dicial immunity does not necessarily incur a strike—either on
grounds of failure to state a claim or of frivolousness—

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8 No. 22-3032
Holmes’s complaint did. Holmes sought damages against
judges in this circuit for writing certain words in a judicial
opinion that he did not like. It was therefore plain from
Holmes’s complaint that the judges acted in their judicial ca-
pacities and with jurisdiction and were accordingly immune
from suit. See Mireles, 502 U.S. at 11–12 (a judge lacks judicial
immunity only for “actions not taken in the judge’s judicial
capacity” or for actions “taken in the complete absence of all
jurisdiction”). As a result, the court dismissed the case for fail-
ure to state a claim in part because of judicial immunity clear
from the face of the complaint. On both this dismissal and the
Heck dismissal, then, Holmes has struck out.
A FFIRMED

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