A dismissal entered on a motion for summary judgment may qualify as a “strike” if, on the face of the order, it is clear that the dismissed case was frivolous, malicious or failed to state a claim. Code § 8.01-692 was enacted to control the volume of prisoner lawsuits overburdening the resources of the … courts” and to “reduce the number of frivolous lawsuits.
Therefore, the circuit court did not err in denying a motion for nonsuit and prospectively denying an inmate in forma pauperis status pursuant to that statute, because the appellant has had at least three cases dismissed for failure to state a claim.
However, the court vacates the imposition of pre-service review and summary dismissal on any future complaints Gordon might file in the Wise County Circuit Court. That portion of the judgment is remanded for consideration of the four-factor test established in Adkins v. CP/IPERS Arlington Hotel LLC, 293 Va. 446 (2017).
Affirmed in part, vacated in part, and remanded.