Samuel Taylor v. Paula Phillips

417 F. App'x 607

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 18, 2011
• Docket: 11-1648
• Status: Unpublished

Opinion

PER CURIAM.

Missouri inmate Samuel Taylor appeals from the District Court’s order dismissing his 42 U.S.C. § 1983 complaint without prejudice under 28 U.S.C. § 1915(g). Upon de novo review, we conclude that only two of the three cases that the court identified qualify as strikes. See Owens v. Isaac, 487 F.3d 561, 563 (8th Cir.2007) (per curiam) (standard of review). Specifically, the court erroneously counted the dismissal of Taylor v. Schriro, No. 2:01-cv-38, as a strike because in that case, some claims were dismissed for failure to state a claim while others were dismissed without prejudice for improper venue. The plain language in § 1915(g), however, requires that the entire action be dismissed on one or more of the three enumerated grounds, that is, as frivolous or malicious or for failure to state a claim, before it counts as a strike. See 28 U.S.C. § 1915(g) (requiring application of the three-strikes bar if the prisoner has on three or more prior occasions while detained brought an action or appeal in federal court that was dismissed as frivolous or malicious or for failure to state a claim); see also Tolbert v. Stevenson, 635 F.3d 646, 647-55 (4th Cir. 2011) (collecting cases supporting the proposition that “action” in § 1915(g) unambiguously means the entire case or suit, so that an inmate’s entire “action or appeal” must be dismissed on grounds enumerated in the statute in order to count as a strike); cf. Powells v. Minnehaha Cnty. Sheriff Dep't, 198 F.3d 711, 713 (8th Cir. 1999) (per curiam) (noting that the reversal of the district court’s dismissal of some of the claims in a prisoner’s suit eliminated one of the three strikes that had served as the basis for dismissal of two later-filed cases).

Accordingly, we grant leave to appeal in forma pauperis, we reverse the § 1915(g) dismissal, and we remand for further proceedings.