Samuel Taylor v. Unknown Hull

Eighth Circuit

Samuel Taylor v. Unknown Hull

538 F. App'x 734

CourtCourt of Appeals for the Eighth Circuit

DecidedNovember 4, 2013

Docket13-3044

StatusUnpublished

Cited by2 cases

This text of 538 F. App'x 734 (Samuel Taylor v. Unknown Hull) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Samuel Taylor v. Unknown Hull, 538 F. App'x 734 (8th Cir. 2013).

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Opinion

PER CURIAM.

Missouri inmate Samuel Taylor appeals from an order of the District Court dismissing his 42 U.S.C. § 1983 complaint without prejudice under 28 U.S.C. § 1915(g), the “three strikes” provision of the Prison Litigation Reform Act. Because Taylor did not have three qualifying “strikes” at the time he filed this appeal, we grant his motion to proceed in forma pauperis in this court.

We also conclude that Taylor did not have three qualifying strikes at the time he filed this action in the District Court. We have reviewed the three cases that the District Court identified as strikes, and only two qualify. See Owens v. Isaac, 487 F.3d 561, 563 (8th Cir.2007) (per curiam) (reviewing de novo a district court’s interpretation and application of § 1915(g)). *735 Specifically, the dismissal of Taylor v. Francis, No. 4:12-cv-613, is not a qualifying strike because only some of the claims asserted were dismissed as legally frivolous, while others were dismissed without prejudice for improper joinder. The plain language in § 1915(g) requires that the entire action be dismissed on one or more of three enumerated grounds, i.e., as frivolous, malicious, or for failing to state a claim. See § 1915(g) (instructing that three-strikes bar applies if a prisoner has on three or more occasions while detained brought an action or appeal in federal court that was dismissed as frivolous, malicious, or for failing to state claim); Tolbert v. Stevenson, 635 F.3d 646, 649-55 (4th Cir.2011) (collecting cases for the proposition that “action” in § 1915(g) unambiguously means the entire case or suit and thus that an inmate’s entire “action or appeal” must be dismissed on one or more of the enumerated grounds to count as strike); see also Orr v. Clements, 688 F.3d 463, 466 (8th Cir.2012) (citing Tolbert for the proposition that “action” under § 1915(g) means “entire ‘case’ or ‘suit’ ”).

Accordingly, we vacate the § 1915(g) dismissal, and we remand for further proceedings.

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PER CURIAM.

Missouri inmate Samuel Taylor appeals from an order of the District Court dismissing his 42 U.S.C. § 1983 complaint without prejudice under 28 U.S.C. § 1915(g), the “three strikes” provision of the Prison Litigation Reform Act. Because Taylor did not have three qualifying “strikes” at the time he filed this appeal, we grant his motion to proceed in forma pauperis in this court.

We also conclude that Taylor did not have three qualifying strikes at the time he filed this action in the District Court. We have reviewed the three cases that the District Court identified as strikes, and only two qualify. See Owens v. Isaac, 487 F.3d 561, 563 (8th Cir.2007) (per curiam) (reviewing de novo a district court’s interpretation and application of § 1915(g)). *735 Specifically, the dismissal of Taylor v. Francis, No. 4:12-cv-613, is not a qualifying strike because only some of the claims asserted were dismissed as legally frivolous, while others were dismissed without prejudice for improper joinder. The plain language in § 1915(g) requires that the entire action be dismissed on one or more of three enumerated grounds, i.e., as frivolous, malicious, or for failing to state a claim. See § 1915(g) (instructing that three-strikes bar applies if a prisoner has on three or more occasions while detained brought an action or appeal in federal court that was dismissed as frivolous, malicious, or for failing to state claim); Tolbert v. Stevenson, 635 F.3d 646, 649-55 (4th Cir.2011) (collecting cases for the proposition that “action” in § 1915(g) unambiguously means the entire case or suit and thus that an inmate’s entire “action or appeal” must be dismissed on one or more of the enumerated grounds to count as strike); see also Orr v. Clements, 688 F.3d 463, 466 (8th Cir.2012) (citing Tolbert for the proposition that “action” under § 1915(g) means “entire ‘case’ or ‘suit’ ”).

Accordingly, we vacate the § 1915(g) dismissal, and we remand for further proceedings.

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