USCA11 Case: 21-10550 Date Filed: 12/02/2021 Page: 1 of 6
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-10550 Non-Argument Calendar ____________________
JEREMY JOHN WELLS, Plaintiff-Appellant, versus WARDEN, CLIFFORD BROWN, Unit Manager, FNU FLUKER,
Defendants-Appellees. USCA11 Case: 21-10550 Date Filed: 12/02/2021 Page: 2 of 6
2 Opinion of the Court 21-10550
Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 1:20-cv-00097-JRH-BKE ____________________
Before JILL PRYOR, LUCK, and LAGOA, Circuit Judges. PER CURIAM: Jeremy Wells, who is incarcerated in Georgia, appeals the district court’s dismissal of his pro se lawsuit against prison offi- cials under the so-called “three strikes rule” of the Prison Litiga- tion Reform Act. Wells, who is now represented by counsel, ar- gues that of the three cases deemed to be strikes, two were dis- missed for failure to exhaust administrative remedies, a disposi- tion that does not qualify as a strike under the Act. Because bind- ing precedent forecloses Wells’s argument, we affirm. I. While incarcerated at the Augusta State Medical Prison, Wells allegedly was brutally beaten by gang members despite having warned prison officials of the potential for such an attack and his particular vulnerability to attack. Proceeding pro se, he filed a 42 U.S.C. § 1983 action against the prison’s warden, as well as a unit manager and corrections officer, alleging that they were responsible for his injuries. Being indigent, Wells also filed a mo- tion to proceed in forma pauperis (“IFP”). A magistrate judge rec- USCA11 Case: 21-10550 Date Filed: 12/02/2021 Page: 3 of 6
21-10550 Opinion of the Court 3
ommended denying Wells’s motion to proceed IFP under the “three strikes rule” of the Prison Litigation Reform Act (“PLRA”) because two of his previous cases had been “dismissed for failure to exhaust administrative remedies,” one had been dismissed for failure to state a claim, and Wells did not qualify for an exception to the three-strikes rule in the case of imminent danger to the prisoner. Doc. 18 at 3 1; see 28 U.S.C. § 1915(g) (prohibiting a pris- oner from proceeding IFP “if the prisoner has, on 3 or more prior occasions,” had a lawsuit “that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury”). Wells objected, arguing that only one of the three actions the magistrate judge cited was dismissed for one of the three stat- utory reasons listed in the PLRA—failure to state a claim. The other two, Wells argued, “were lost on grounds different from that which is considered a ‘strike’ by the standards la[id] out in the PLRA”—failure to exhaust administrative remedies. Doc. 20 at 1. The district court overruled Wells’s objection and adopted the magistrate judge’s recommendation. The court dismissed Wells’s case. Wells now appeals. II. On appeal, Wells renews his argument that two of the three cases the district court viewed as resulting in strikes did not
1 “Doc.” numbers refer to district court docket entries. USCA11 Case: 21-10550 Date Filed: 12/02/2021 Page: 4 of 6
4 Opinion of the Court 21-10550
actually qualify as strikes under the PLRA. The dispositions he challenges were dismissals for failure to exhaust administrative remedies. Wells directs us to the text of the PLRA, which lists just three grounds for a strike: “dismiss[als] on the grounds that [an action] is frivolous, malicious, or fails to state a claim upon which relief may be granted.” See 28 U.S.C. § 1915(g). Failure to exhaust administrative remedies, he argues, is neither expressly included among these grounds nor “equivalent to” an enumerated ground such that it should impliedly be included. Thus, Wells says, the cases he brought that were dismissed for failure to exhaust do not count as strikes under the PLRA, leaving him with only one quali- fying strike and without the restrictions the statute imposes upon litigants with three. Wells acknowledges that this Court has held that a com- plaint that “lacked any allegations of exhaustion of remedies” is “tantamount to one that fails to state a claim upon which relief may be granted” and therefore is a strike under the PLRA. Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998). He argues, though, that Rivera has been overruled by the Supreme Court’s decision in Jones v. Bock, in which the Court held, as to the sua sponte dismissal provision in the PLRA, that exhaustion is an affirmative defense to be pled by defendants and plaintiffs are “not required to specially plead or demonstrate exhaustion in their complaints.” 549 U.S. 199, 216 (2007). Wells observes that our Court has once reaffirmed Rivera since the Supreme Court decided Jones, see White v. Lemma, 947 F.3d 1373, 1379 (11th Cir. 2020), but he ar- USCA11 Case: 21-10550 Date Filed: 12/02/2021 Page: 5 of 6
21-10550 Opinion of the Court 5
gues that White also is “no longer good law” on account of Jones. Appellant Br. at 52. Given Jones, Wells notes, other circuits have recognized that dismissal for failing to plead exhaustion cannot be a strike. In fact, Wells emphasizes, all other circuits to have addressed the is- sue—the Second, Third, Fourth, Seventh, Eighth, Tenth, and D.C. Circuits—have concluded that dismissal based on the failure to exhaust, in the absence of an enumerated ground, does not constitute a strike under the PLRA. See Snider v. Melindez, 199 F.3d 108, 115 (2d Cir. 1999); Ball v. Famiglio, 726 F.3d 448, 459–60 (3d Cir. 2013), abrogated on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015); Green v. Young, 454 F.3d 405, 408– 09 (4th Cir. 2006); Turley v. Gaetz, 625 F.3d 1005, 1012–13 (7th Cir. 2010); Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007); Strope v. Cummings, 653 F.3d 1271, 1274 (10th Cir. 2011); Thompson v. DEA, 492 F.3d 428, 438 (D.C. Cir. 2007); see also Pointer v. Wilkinson, 502 F.3d 369, 375 (6th Cir. 2007) (observing, in dicta, that where a complaint is dismissed in its entirety for failure to exhaust, the plaintiff would have a “compelling argu- ment that a strike should not be assessed”). We review de novo a district court’s dismissal of a case un- der the PLRA’s three strikes rule. Mitchell v. Nobles, 873 F.3d 869, 873 (11th Cir. 2017).
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USCA11 Case: 21-10550 Date Filed: 12/02/2021 Page: 1 of 6
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-10550 Non-Argument Calendar ____________________
JEREMY JOHN WELLS, Plaintiff-Appellant, versus WARDEN, CLIFFORD BROWN, Unit Manager, FNU FLUKER,
Defendants-Appellees. USCA11 Case: 21-10550 Date Filed: 12/02/2021 Page: 2 of 6
2 Opinion of the Court 21-10550
Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 1:20-cv-00097-JRH-BKE ____________________
Before JILL PRYOR, LUCK, and LAGOA, Circuit Judges. PER CURIAM: Jeremy Wells, who is incarcerated in Georgia, appeals the district court’s dismissal of his pro se lawsuit against prison offi- cials under the so-called “three strikes rule” of the Prison Litiga- tion Reform Act. Wells, who is now represented by counsel, ar- gues that of the three cases deemed to be strikes, two were dis- missed for failure to exhaust administrative remedies, a disposi- tion that does not qualify as a strike under the Act. Because bind- ing precedent forecloses Wells’s argument, we affirm. I. While incarcerated at the Augusta State Medical Prison, Wells allegedly was brutally beaten by gang members despite having warned prison officials of the potential for such an attack and his particular vulnerability to attack. Proceeding pro se, he filed a 42 U.S.C. § 1983 action against the prison’s warden, as well as a unit manager and corrections officer, alleging that they were responsible for his injuries. Being indigent, Wells also filed a mo- tion to proceed in forma pauperis (“IFP”). A magistrate judge rec- USCA11 Case: 21-10550 Date Filed: 12/02/2021 Page: 3 of 6
21-10550 Opinion of the Court 3
ommended denying Wells’s motion to proceed IFP under the “three strikes rule” of the Prison Litigation Reform Act (“PLRA”) because two of his previous cases had been “dismissed for failure to exhaust administrative remedies,” one had been dismissed for failure to state a claim, and Wells did not qualify for an exception to the three-strikes rule in the case of imminent danger to the prisoner. Doc. 18 at 3 1; see 28 U.S.C. § 1915(g) (prohibiting a pris- oner from proceeding IFP “if the prisoner has, on 3 or more prior occasions,” had a lawsuit “that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury”). Wells objected, arguing that only one of the three actions the magistrate judge cited was dismissed for one of the three stat- utory reasons listed in the PLRA—failure to state a claim. The other two, Wells argued, “were lost on grounds different from that which is considered a ‘strike’ by the standards la[id] out in the PLRA”—failure to exhaust administrative remedies. Doc. 20 at 1. The district court overruled Wells’s objection and adopted the magistrate judge’s recommendation. The court dismissed Wells’s case. Wells now appeals. II. On appeal, Wells renews his argument that two of the three cases the district court viewed as resulting in strikes did not
1 “Doc.” numbers refer to district court docket entries. USCA11 Case: 21-10550 Date Filed: 12/02/2021 Page: 4 of 6
4 Opinion of the Court 21-10550
actually qualify as strikes under the PLRA. The dispositions he challenges were dismissals for failure to exhaust administrative remedies. Wells directs us to the text of the PLRA, which lists just three grounds for a strike: “dismiss[als] on the grounds that [an action] is frivolous, malicious, or fails to state a claim upon which relief may be granted.” See 28 U.S.C. § 1915(g). Failure to exhaust administrative remedies, he argues, is neither expressly included among these grounds nor “equivalent to” an enumerated ground such that it should impliedly be included. Thus, Wells says, the cases he brought that were dismissed for failure to exhaust do not count as strikes under the PLRA, leaving him with only one quali- fying strike and without the restrictions the statute imposes upon litigants with three. Wells acknowledges that this Court has held that a com- plaint that “lacked any allegations of exhaustion of remedies” is “tantamount to one that fails to state a claim upon which relief may be granted” and therefore is a strike under the PLRA. Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998). He argues, though, that Rivera has been overruled by the Supreme Court’s decision in Jones v. Bock, in which the Court held, as to the sua sponte dismissal provision in the PLRA, that exhaustion is an affirmative defense to be pled by defendants and plaintiffs are “not required to specially plead or demonstrate exhaustion in their complaints.” 549 U.S. 199, 216 (2007). Wells observes that our Court has once reaffirmed Rivera since the Supreme Court decided Jones, see White v. Lemma, 947 F.3d 1373, 1379 (11th Cir. 2020), but he ar- USCA11 Case: 21-10550 Date Filed: 12/02/2021 Page: 5 of 6
21-10550 Opinion of the Court 5
gues that White also is “no longer good law” on account of Jones. Appellant Br. at 52. Given Jones, Wells notes, other circuits have recognized that dismissal for failing to plead exhaustion cannot be a strike. In fact, Wells emphasizes, all other circuits to have addressed the is- sue—the Second, Third, Fourth, Seventh, Eighth, Tenth, and D.C. Circuits—have concluded that dismissal based on the failure to exhaust, in the absence of an enumerated ground, does not constitute a strike under the PLRA. See Snider v. Melindez, 199 F.3d 108, 115 (2d Cir. 1999); Ball v. Famiglio, 726 F.3d 448, 459–60 (3d Cir. 2013), abrogated on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015); Green v. Young, 454 F.3d 405, 408– 09 (4th Cir. 2006); Turley v. Gaetz, 625 F.3d 1005, 1012–13 (7th Cir. 2010); Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007); Strope v. Cummings, 653 F.3d 1271, 1274 (10th Cir. 2011); Thompson v. DEA, 492 F.3d 428, 438 (D.C. Cir. 2007); see also Pointer v. Wilkinson, 502 F.3d 369, 375 (6th Cir. 2007) (observing, in dicta, that where a complaint is dismissed in its entirety for failure to exhaust, the plaintiff would have a “compelling argu- ment that a strike should not be assessed”). We review de novo a district court’s dismissal of a case un- der the PLRA’s three strikes rule. Mitchell v. Nobles, 873 F.3d 869, 873 (11th Cir. 2017). Under this Court’s prior panel precedent rule, a prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of ab- rogation by the Supreme Court or by this Court sitting en banc. USCA11 Case: 21-10550 Date Filed: 12/02/2021 Page: 6 of 6
6 Opinion of the Court 21-10550
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). Un- der the rule, “there is never an exception carved out for over- looked or misinterpreted Supreme Court precedent.” United States v. Fritts, 841 F.3d 937, 942 (11th Cir. 2016). Even if Rivera alone would not bind us in light of Jones, White does. In White, decided after Jones, we stated broadly that a prior case that “was dismissed for failure to exhaust administra- tive remedies . . . counts as a [PLRA] strike under our precedent.” White, 947 F.3d at 1379 (citing Rivera, 144 F.3d at 728–31). De- spite circuit authority to the contrary, given White, we must con- clude that dismissal for failure to exhaust qualifies as a strike un- der the PLRA. See Fritts, 841 F.3d at 942 (rejecting argument that the Supreme Court’s decision in Curtis Johnson v. United States abrogated our precedent because a panel decision post-dating Johnson bound us irrespective of whether it correctly accounted for Johnson); Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e categorically reject any exception to the prior panel precedent rule based upon a perceived defect in the prior panel’s reasoning or analysis as it relates to the law in existence at the time.”). Applying this logic, we can find no error in the district court’s conclusion that Wells had three PLRA strikes and that his instant case was due to be dismissed. Because we remain bound by White, we affirm the judg- ment of the district court. AFFIRMED.