Turley v. Gaetz , 625 F.3d 1005 ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3847
G REGORY J. T URLEY,
Plaintiff-Appellant,
v.
D ONALD G AETZ, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09-cv-00829-GPM—G. Patrick Murphy, Judge.
A RGUED M AY 26, 2010—D ECIDED O CTOBER 14, 2010
Before R IPPLE, K ANNE and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. Gregory Turley, an Illinois pris-
oner, filed a pro se lawsuit under 42 U.S.C. § 1983,
claiming that the warden, a number of guards and other
employees at Menard Correctional Center (“Menard”)
retaliated against him for litigation previously filed
regarding his conditions of confinement. Mr. Turley
moved to proceed in forma pauperis (“IFP”), but the
district court concluded that he was ineligible due to
2 No. 09-3847
the “three-strikes” rule of the Prison Litigation Reform
Act of 1995 (“PLRA”), see 28 U.S.C. § 1915(g). Relying
on our opinions in George v. Smith, 507 F.3d 605, 607-08
(7th Cir. 2007), and Boriboune v. Berge, 391 F.3d 852, 855
(7th Cir. 2004), the district court reasoned that
Mr. Turley had “struck out” because in each of his three
prior lawsuits at least one claim had been dismissed
for failure to state a claim although other claims had
been permitted to go forward. The court also concluded
that Mr. Turley was not in imminent danger of serious
physical harm and, therefore, did not meet the one ex-
ception to the three-strikes rule. The court therefore
dismissed the complaint but without prejudice so that
Mr. Turley could refile upon prepayment of the full
filing fee. Mr. Turley appeals. For the reasons set forth
in this opinion, we reverse the judgment of the dis-
trict court and remand with instructions to reconsider
Mr. Turley’s application to proceed IFP.
I
BACKGROUND
In his complaint, filed in October 2009, Mr. Turley
contends that the defendants have worked together to
punish him for filing grievances and lawsuits about
the conditions of his confinement at Menard. He alleges
that he has endured a range of retaliatory actions in-
cluding physical assaults, threats, trumped-up dis-
ciplinary charges, confinement in segregation without
a valid reason, interference with his access to the
grievance system and removal of his personal property.
No. 09-3847 3
Mr. Turley also filed an application to proceed IFP. Sec-
tion 1915(g) of Title 28 prohibits a prisoner from pro-
ceeding IFP if, on three or more occasions during his
imprisonment, he has “brought an action or appeal in a
court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted.” 28 U.S.C.
§ 1915(g). The sole statutory exception to this three-
strikes limitation on IFP status is if “the prisoner is
under imminent danger of serious physical injury.” Id.In his IFP application, Mr. Turley disclosed that a dif-
ferent district judge already had dismissed two other
civil actions on the basis of § 1915(g) after concluding
that he had incurred strikes for three earlier lawsuits.1
Mr. Turley argued, however, that those earlier suits
should not be considered “strikes” because each action
included some claims that proceeded to a decision on
the merits, along with some claims that had been dis-
missed at screening. See 28 U.S.C. § 1915A. Mr. Turley
also contended that he was “under imminent danger
of serious physical injury.” 28 U.S.C. § 1915(g). In par-
ticular, he alleged that one of the defendant prison em-
ployees had threatened him.
A review of Mr. Turley’s litigation history reveals
three relevant civil rights cases filed during his incar-
1
Another district court judge of the same district had dis-
missed Mr. Turley’s other complaints on August 14, 2008.
Mr. Turley’s appeals of those dismissals currently are pending
in this court. Turley v. Hulick, No. 08-3233 (7th Cir. filed Sept. 2,
2008); Turley v. Hulick, No. 08-3232 (7th Cir. filed Sept. 2, 2008).
4 No. 09-3847
ceration. In the first action, Turley v. Cowan, No. 01-cv-188-
MJR (S.D. Ill. Mar. 13, 2007), the district court dismissed
one of Mr. Turley’s claims at screening for failure to
state a claim but permitted two other claims for retalia-
tion by prison officials to proceed to a jury trial. The
parties ultimately settled the case following a jury
verdict in Mr. Turley’s favor. Cowan, No. 01-cv-188-MJR
(Docket Nos. 7, 39, 141, 151).
In the second action, Turley v. Smith, No. 02-cv-4592
(N.D. Ill. July 27, 2005), Mr. Turley claimed that prison
administrators and medical personnel had been deliber-
ately indifferent to his medical needs. At screening the
district court concluded that Mr. Turley had failed to
state a claim against some defendants, specifically
those who relied on the authority of medical staff in
denying his grievances. Smith, No. 02-cv-4592 (Docket
No. 6). The court later granted summary judgment for
the medical staff defendants on the ground that
Mr. Turley lacked evidence of deliberate indifference.
Smith, No. 02-cv-4592 (Docket No. 97).
Mr. Turley’s third action, Turley v. Catchings, No. 03-cv-
8491 (N.D. Ill. Oct. 26, 2006), included multiple allega-
tions against prison officials, including a retaliation
claim and a claim that he was placed in investigative
segregation without due process. The district court con-
cluded that Mr. Turley’s complaint failed to state a
claim for a due process violation and also dismissed
from the case a number of defendants whom Mr. Turley
had sued only in their supervisory capacity. Catchings,
No. 03-cv-8491 (Docket No. 7). The court allowed the
No. 09-3847 5
retaliation claim to proceed against four defendants, id.,and later granted those defendants’ motion for sum-
mary judgment after concluding that Mr. Turley had
failed to exhaust his administrative remedies as re-
quired under 42 U.S.C. § 1997e(a), Catchings, No. 03-cv-
8491 (Docket No. 128).
Based on this litigation history, the district court in
the current litigation denied Mr. Turley’s motion for
leave to proceed IFP and dismissed the complaint with-
out prejudice, thus permitting refiling after prepay-
ment of the full filing fee.2 Citing George v. Smith, 507
F.3d at 607-08, and Boriboune v. Berge, 391 F.3d at 855, the
district court concluded that Mr. Turley had accumulated
three strikes because in each of his prior lawsuits at
least one claim had been dismissed for failure to state
a claim. The district court rejected Mr. Turley’s contrary
reading of § 1915(g): that a dismissal incurs a strike
only if the entire action is dismissed as frivolous, mali-
cious or for failure to state a claim. The court opined that
2
Ordinarily, a dismissal without prejudice is not a final,
appealable order. See Taylor-Holmes v. Office of Cook Cnty. Pub.
Guardian, 503 F.3d 607, 609-10 (7th Cir. 2007). The denial of a
motion to proceed IFP, however, is an exception to this rule
and an appealable order. Roberts v. United States Dist. Court for
N. Dist. of Cal., 339 U.S. 844, 845 (1950); Walker v. O’Brien, 216
F.3d 626, 634-37 (7th Cir. 2000); Newlin v. Helman, 123 F.3d 429,
436 (7th Cir. 1997) (“[A] prisoner may file an appeal to
contest the district court’s conclusion that he is ineligible to
proceed in forma pauperis.”), overruled in part on other grounds
by Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000).
6 No. 09-3847
Mr. Turley’s interpretation of the statute was foreclosed
by George and commented that “[w]hether George is a
correct interpretation of § 1915(g) is not a decision for
this court to make.” R.9 at 3. The district court also
rejected Mr. Turley’s contention that he was under im-
minent danger of serious physical injury. This appeal
followed.
II
DISCUSSION
At issue in this case is the interpretation of the three-
strikes rule under the PLRA, see 28 U.S.C. § 1915(g).
Specifically, we consider whether the dismissal of
certain claims in an action on grounds that they are frivo-
lous, malicious or fail to state a claim results in a strike,
for purposes of § 1915(g), despite the fact that other
related claims in the same action proceed to adjudica-
tion on the merits. The district court concluded these
prior split cases did result in a strike. Mr. Turley con-
tends that the court’s application of the three-strikes
limitation on a claim-by-claim basis is contrary to the
plain language of the statute. He further challenges the
district court’s finding that he was not in imminent
danger. See 28 U.S.C. § 1915(g); Ciarpaglini v. Saini, 352
F.3d 328, 330-31 (7th Cir. 2003). We review de novo a
district court’s application of the PLRA’s three-strikes
limitation. Ciarpaglini, 352 F.3d at 330; Evans v. Ill. Dep’t of
Corr., 150 F.3d 810, 811 (7th Cir. 1998).
“Statutory construction must begin with the language
employed by Congress and the assumption that the
No. 09-3847 7
ordinary meaning of that language accurately expresses
the legislative purpose.” Park ‘N Fly, Inc. v. Dollar Park &
Fly, Inc., 469 U.S. 189, 194 (1985); see also Ortega v. Holder,
592 F.3d 738, 743 (7th Cir. 2010); United States v. Olofson,
563 F.3d 652, 658 (7th Cir. 2009). Turning to that lan-
guage, § 1915(g) prohibits a prisoner from proceeding
IFP if he has a history of frivolous litigation:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding
under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or de-
tained in any facility, brought an action or appeal
in a court of the United States 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.
28 U.S.C. § 1915(g) (emphasis added). Section 1915(g)
literally speaks in terms of prior actions that were dis-
missed as frivolous, malicious or for failure to state a
claim. The statute does not employ the term “claim” to
describe the type of dismissal that will incur a strike.
“Action” and “claim” have well-defined meanings in
the pleading context. See Fed. R. Civ. P. 3 (providing that
a civil “action” begins with the filing of a complaint);
Fed. R. Civ. P. 8(a) (setting out the minimal requirements
to state a “claim” for relief); Fed. R. Civ. P. 18(a) (pro-
viding that a party may join multiple “claims” against a
single defendant). Here we believe that the obvious
reading of the statute is that a strike is incurred for
8 No. 09-3847
an action dismissed in its entirety on one or more of the
three enumerated grounds. See 28 U.S.C. § 1915(g).
Our sister circuits already have adopted this reading
of § 1915(g). In Thompson v. Drug Enforcement Administra-
tion, 492 F.3d 428, 432 (D.C. Cir. 2007), the D.C. Circuit
held that the plain language of § 1915(g) provides that
a plaintiff incurs a strike only when the entire action is
dismissed based on one of the listed bases. The court
reasoned that “it would make no sense to say—where
one claim within an action is dismissed for failing to
state a claim and another succeeds on the merits—that
the ‘action’ had been dismissed for failing to state a
claim.” Id. Accordingly, the court in Thompson held
that “actions containing at least one claim falling
within none of the three strike categories” do not count
as strikes. Id.
In Pointer v. Wilkinson, 502 F.3d 369, 372-73 (6th Cir.
2007), the Sixth Circuit held that a complaint dismissed
in part for failure to exhaust and in part on one of the
grounds enumerated in § 1915(g) counts as a strike.
However, it recognized that “if some claims were dis-
missed without prejudice for failure to exhaust and
other claims ‘were found to have merit,’ then the dis-
missal of other frivolous claims would not render the
dismissal a strike.” Pointer, 502 F.3d at 372, 376-77 (quoting
Clemons v. Young, 240 F. Supp. 2d 639, 641 (E.D. Mich.
2003)). Similarly, both the Fifth and Eighth Circuits have
recognized that overturning a dismissal in part and
reinstating some but not all of a plaintiff’s claims elimi-
nates any strike originally thought to apply to the case.
No. 09-3847 9
See Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d
599, 617 (5th Cir. 2008); Powells v. Minnehaha Cnty. Sheriff
Dep’t, 198 F.3d 711, 713 (8th Cir. 1999) (citing Moore v. Doan,
No. 98-cv-2307, 1998 WL 887089, at *5 (N.D. Ill. Dec. 10,
1998)). In another context, the Ninth Circuit concluded
that a case is “dismissed” under § 1915(g) when the
district court “disposes of an in forma pauperis com-
plaint” on one of the three statutory grounds. O’Neal v.
Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (emphasis added).
Counting as a strike only the dismissal of an entire
action is consistent with the Supreme Court’s interpreta-
tion of 42 U.S.C. § 1997e(a), a different provision of the
PLRA which provides that “[n]o action” challenging
prison conditions shall be brought by an inmate until
administrative remedies have been exhausted. In Jones
v. Bock, 549 U.S. 199 (2007), the Court recognized that
the PLRA was intended “to filter out the bad claims
and facilitate consideration of the good.” Jones, 549 U.S.
at 203-04. The language of § 1997e(a), the Court held,
authorizes a district court to dismiss a prisoner’s law-
suit in its entirety only if the complaint is devoid of
unexhausted claims. Id. at 220-21. If a complaint presents
both exhausted and unexhausted claims, the Court con-
cluded, only the unexhausted claims may be dismissed.
Id. at 221. As the Court explained, “statutory references
to an ‘action’ have not typically been read to mean
that every claim included in the action must meet the
pertinent requirement before the ‘action’ may proceed.” Id.
In Jones, the Supreme Court also endorsed our inter-
pretation of yet another provision of the PLRA, 42 U.S.C.
10 No. 09-3847
§ 1997e(e), which provides that “[n]o Federal civil action
may be brought by a prisoner . . . for mental or emotional
injury suffered while in custody without a prior showing
of physical injury.” See Jones, 549 U.S. at 221 (citing Robin-
son v. Page, 170 F.3d 747, 748-49 (7th Cir. 1999)). In Robin-
son, we were faced with the question whether a
mixed “action,” meaning a complaint containing a claim
barred under § 1997e(e) along with other permissible
claims, must be dismissed in its entirety or whether
only the unauthorized claim should be dismissed.
Robinson, 170 F.3d at 748-49. We concluded that “the
natural reading of the statute” required dismissal of only
the unauthorized claim. Id. at 748. We explained that
to dismiss an entire suit
because it had one bad claim would be not only
gratuitous, but also contrary to the fundamental
procedural norm that when a complaint has both
good and bad claims, in the sense of claims that
can and claims that cannot survive a motion to
dismiss under Fed. R. Civ. P. 12(b)(6), only the bad
claims are dismissed; the complaint as a whole
is not.
Id. at 748-49; see also Freeman v. Watkins, 479 F.3d 1257,
1259-60 (10th Cir. 2007) (interpreting requirements
for dismissal of claims for lack of exhaustion under
§ 1997e(c)(1)); Lira v. Herrera, 427 F.3d 1164, 1172-73
(9th Cir. 2005) (same).
Given the plain language of § 1915(g) and the
Supreme Court’s understanding of how “action” is used
elsewhere in the PLRA, this case would be straight-
forward if not for our opinions in George and Boriboune.
No. 09-3847 11
The district court read these decisions to hold that a
dismissal of even one claim on a ground enumerated in
§ 1915(g)—even when other claims survive—is enough
to qualify the entire lawsuit as a strike. Mr. Turley con-
tends that the district court’s reading is too broad and
that these opinions stand only for the limited proposi-
tion that prisoners cannot abuse the rules of joinder to
insulate their complaints from the three-strikes limita-
tion. To the extent that George and Boriboune hold that
the dismissal of a single claim among several is enough
to incur a strike, Mr. Turley asks that the two decisions
be overruled as contrary to the plain language of § 1915(g).
We agree with Mr. Turley that George and Boriboune
do not control here and do not compel a claim-by-claim
analysis of inmate complaints for purposes of applying
§ 1915(g). George and Boriboune specifically address the
application of the PLRA to lawsuits in which several
inmates have joined their individual claims in a single
complaint or in which one inmate has joined multiple
claims against several defendants. Neither decision,
however, speaks directly to the question presented by
this case. In Boriboune, four prisoners jointly filed a
single lawsuit and sought IFP status. 391 F.3d at 853. The
district court had announced that it would not allow
inmates jointly to proceed IFP and dismissed the com-
plaint. Id. We reversed. We held that the PLRA did not
supersede Federal Rule of Civil Procedure 20(a)(1),
which allows multiple plaintiffs to join claims arising
out of the same series of occurrences and sharing a ques-
tion of law or fact common to all plaintiffs. Id. at 854.
Noting, however, the “substantial” risk that “[j]oint
litigation could undermine the system of financial incen-
12 No. 09-3847
tives created by the PLRA,” we also held that the PLRA
did modify the normal rule that the filing of a lawsuit
incurs just one filing fee no matter the number of plain-
tiffs. Id. at 854-56. Thus, prisoners seeking to proceed
IFP on a jointly filed complaint must pay one fee apiece.
Id. at 856. In analyzing those questions we emphasized
that prisoners should be aware of the shared risks of
joint litigation and explained that a prisoner litigating
jointly under Rule 20 takes the risk that one or more of
the claims in the complaint may be deemed sanctionable
or count as a strike “whether or not they concern
him personally.” Id. at 855. We opined on the risk that
a strike may be incurred in the context of joint litigation:
[Section] 1915(g) limits to three the number of IFP
complaints or appeals that were “dismissed on the
grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted[.”]
This language refers to the complaint or appeal as
a whole; thus when any claim in a complaint or
appeal is “frivolous, malicious, or fails to state a
claim upon which relief may be granted[,”] all
plaintiffs incur strikes.
Id. (emphasis added). This language, however, is
dictum and was not central to our holding that the
rules of joinder apply equally to prisoner suits.
Nearly three years later, however, in George, we charac-
terized Boriboune’s discussion of § 1915(g) as carrying
greater weight. George addressed the reverse situation
of that in Boriboune: a complaint by a single inmate
joining 50 disparate claims against 24 defendants. 507
F.3d at 607. This joinder, we explained, not only violated
No. 09-3847 13
the limitation on joinder of unrelated claims under
Federal Rules of Civil Procedure 18 and 20, but also
allowed the plaintiff to dodge paying multiple filing
fees and risking multiple strikes for what should have
been several different lawsuits. Id. The plaintiff in George
had filed a “buckshot complaint” in the hope that “if even
1 of his 50 claims were deemed non-frivolous, he would
receive no ‘strikes’ at all, as opposed to the 49 that would
result from making 49 frivolous claims in a batch of
50 suits.” Id. “The district judge had likewise assumed
that a single non-frivolous claim in a blunderbuss com-
plaint makes the suit as a whole non-frivolous.” Id. We
explained that a prisoner’s complaint that fails to
satisfy Rule 20 should be rejected just as a free person’s
complaint would, and, here, the plaintiff had made
no effort to show how his joinder of claims satisfied
Rule 20. Id. We did not insist, however, that every such
complaint must be dismissed. Instead, for claims that
violate Rule 20 but are permitted to go forward, we
offered this comment about § 1915(g):
When a prisoner does file a multi-claim,
multi-defendant suit, the district court should
evaluate each claim for the purpose of § 1915(g).
Boriboune observed: “when any claim in a com-
plaint or appeal is ‘frivolous, malicious, or fails
to state a claim upon which relief may be
granted[,’] all plaintiffs incur strikes” (391 F.3d
at 855; emphasis added).
Id. at 607-08. It followed, we continued, that the plaintiff
in George had incurred “two strikes in this litigation—one
for filing a complaint containing a frivolous claim,
14 No. 09-3847
another for an appeal raising at least one frivolous objec-
tion to the district court’s ruling.” Id. at 608. We con-
cluded by holding that the district court had correctly
granted summary judgment for the defendants on
the plaintiff’s First and Eighth Amendment claims. Id.
at 608-09.
As the district court read these two opinions, George
in particular, the inclusion of a frivolous claim within
an action incurs a strike, even if the remainder of
the action is not frivolous. We believe the district court
overestimated the significance of the language in
George and Boriboune. We do not ascribe to the earlier
panels an intent to substitute “claim” where Congress
has written “action” into § 1915(g). Those opinions
do not purport to interpret § 1915(g) as part of its narrow
holding. In Boriboune, we held that prisoners may join
their claims in a single action but must each pay a
separate filing fee. In George, we held that the district
court correctly granted summary judgment for the de-
fendants. Each decision discusses § 1915(g) and the
PLRA only within the context of the rules of joinder and
explains how district courts should handle prisoners’
complaints that could or should have been filed as
separate actions. See George, 507 F.3d at 607; Boriboune,
391 F.3d at 855. The references to § 1915(g), therefore,
are not essential to the outcome in either case.
The district court’s extension of the language in George
to mean that in all cases a prisoner incurs a strike if
just one claim out of several is dismissed on one of the
enumerated grounds runs counter to the plain language
of the statute, which assigns a strike for the dismissal of
No. 09-3847 15
an “action” and not a “claim.” We previously have de-
scribed § 1915(g) as restricting an inmate’s eligibility
for IFP status “[a]fter losing three cases for one of the
enumerated grounds,” Abdul-Wadood v. Nathan, 91
F.3d 1023, 1024 (7th Cir. 1996) (emphasis added), and
adopting a contrary reading here would leave us in a
minority of one on the issue. Our sister circuits that
have addressed this issue all ascribe to the language of
§ 1915(g) its literal and ordinary meaning: Strikes are
incurred when an action is dismissed, not when one
of several claims is dismissed. As we have noted, the
Fifth, Sixth, Eighth and D.C. Circuits all interpret
§ 1915(g) to count strikes at the case level rather than
claim-by-claim.3 By contrast, we have found little
support for a claim-by-claim application of § 1915(g). The
Third Circuit has adopted the reasoning of Boriboune
to permit joinder of multiple IFP plaintiffs and, in
dicta, agreed that “a court could hold that, reading the
PLRA and Rule 20 together, a plaintiff is accountable
for the dismissal of a co-plaintiff’s claims” when a court
assesses strikes. Hagan v. Rogers, 570 F.3d 146, 156 (3d
Cir. 2009). The Third Circuit did not address, however,
whether “dismissal of a co-plaintiff’s claims” means all
of the co-plaintiff’s claims or just one. Cf. Boriboune v.
3
See Mitchell v. Fed. Bureau of Prisons, 587 F.3d 415, 418 (D.C.
Cir. 2009) (citing Thompson v. Drug Enforcement Admin., 492
F.3d 428, 432 (D.C. Cir. 2007)); Mayfield v. Tex. Dep’t of Criminal
Justice, 529 F.3d 599, 617 (5th Cir. 2008); Pointer v. Wilkinson,
502 F.3d 369, 372, 376-77 (6th Cir. 2007); Powells v. Minnehaha
Cnty. Sheriff Dep’t, 198 F.3d 711, 713 (8th Cir. 1999).
16 No. 09-3847
Berge, No. 04-cv-0015-C, 2005 WL 1320345, at *4-6 (W.D.
Wis. June 1, 2005) (concluding on remand that an indi-
vidual plaintiff incurs a strike only when “the total ac-
cumulation of a particular litigant’s claims within
the group complaint” is dismissed for a reason listed
in § 1915(g)).
Significantly, this circuit has not relied upon George
for the proposition that § 1915(g) counts a partial
dismissal as a strike. Notably, we do not believe that
the George and Boriboune panels intended their re-
marks about § 1915(g) to serve as pronouncements on
the general application of the three-strikes rule to all
prisoner cases because neither opinion was circulated
under Circuit Rule 40(e) despite the contrary precedent
then existing in our sister circuits.4 We presume, there-
fore, that the creation of a circuit split was not intended.
Nevertheless, the district court’s reading of the dicta
in George was understandable, and, regrettably, that dicta
has caused confusion among the district courts, leading
several to conclude that prisoners incur a strike for
the partial dismissal of a complaint.5 Our holding today
clarifies that a strike is incurred under § 1915(g) when
4
See Pointer, 502 F.3d at 372, 376-77 (issued before George);
Thompson, 492 F.3d at 432 (same); Powells, 198 F.3d at 713(issued before Boriboune).
5
See, e.g., Thomas v. Feinerman, No. 09-651-GPM, 2010 WL
1241526, at *3 (S.D. Ill. Mar. 23, 2010); Williams v. Westerman,
No. 08-cv-00858-MJR, 2009 WL 2486603, at *1-2 (S.D. Ill. Aug. 13,
2009); Peterson v. Thatcher, No. 09-cv-325 RM, 2009 WL 2341978,
at *1 (N.D. Ind. July 27, 2009).
No. 09-3847 17
an inmate’s case is dismissed in its entirety based on
the grounds listed in § 1915(g).
Within the context of this case we conclude that
Mr. Turley has not incurred three strikes under § 1915(g)
and remains eligible for IFP status. His first two cases,
Turley v. Cowan and Turley v. Smith, are clearly not
strikes. In each, the district court dismissed some
claims for failure to state a claim, but the remaining
claims were resolved on the merits. As for the third
case, Turley v. Catchings, the district court dismissed it
in part for failure to state a claim and in part for
failure to exhaust administrative remedies. Although
we have acknowledged that a district court may dismiss
a complaint if the existence of a valid affirmative
defense, such as the failure to exhaust, is so plain from
the face of the complaint that the suit can be regarded as
frivolous, that is not what happened here. See Walker v.
Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002). Rather,
following the initial dismissal of some claims under
Federal Rule of Civil Procedure 12(b)(6), the district
court dismissed the remaining unexhausted claims
at summary judgment. We acknowledge that the Sixth
Circuit has in one opinion held that a strike was
incurred where the prisoner’s complaint was dismissed
in part for failure to state a claim and in part for failure
to exhaust, reasoning only that “inclusion of unex-
hausted claims in a complaint in which all other counts
fail to state a claim will not ‘inject merit into the action’
and transform counts that do not state a claim into
ones that do.” Pointer, 502 F.3d at 373, 376. But in
Pointer, the Sixth Circuit also acknowledged—and we
agree—that a dismissal for failure to plead adequately
18 No. 09-3847
exhaustion is distinct from a dismissal for failure to state
a claim, and neither the dismissal of a complaint in its
entirety for failure to exhaust nor the dismissal of unex-
hausted claims from an action containing other viable
claims constitutes a strike under § 1915(g). Id. at 372, 374-
75. A prisoner’s failure to exhaust administrative rem-
edies is statutorily distinct from his failure to state a
claim upon which relief may be granted. See 28 U.S.C.
§ 1915A; 42 U.S.C. § 1997e(a); Jones, 549 U.S. at 211-12;
Walker, 288 F.3d at 1009. The dismissal of an action
for failure to exhaust therefore does not incur a strike.
Thompson, 492 F.3d at 438; Owens v. Isaac, 487 F.3d 561, 563
(8th Cir. 2007); Green v. Young, 454 F.3d 405, 409 (4th
Cir. 2006); Snider v. Melindez, 199 F.3d 108, 111-12 (2d
Cir. 1999). Thus, consistent with the plain language of
the PLRA, we conclude that the dismissal of an action,
in part for failure to exhaust and in part as frivolous,
malicious or for failure to state a claim does not con-
stitute a strike under § 1915(g). Accordingly, the dis-
missal of Mr. Turley’s third case also does not con-
stitute a strike.
Finally, because we conclude that Mr. Turley has not
accumulated three strikes and remains eligible for IFP
status,6 we need not determine whether his allega-
6
The procedural posture of this case is unusual given
Mr. Turley’s representation by retained counsel and payment
of the appellate fees. In the district court, Mr. Turley’s IFP
motion included an affidavit of indigence. The district court,
however, did not make an express finding of indigence and
concluded only that Mr. Turley was barred from IFP status
(continued...)
No. 09-3847 19
tions met the imminent-danger exception to the three-
strikes rule. See 28 U.S.C. § 1915(g).
Conclusion
For the foregoing reasons, the judgment of the
district court is reversed, and the case is remanded with
instructions to reconsider whether Mr. Turley may
proceed IFP. On remand the district court will need to
determine whether Mr. Turley is unable to pay the
filing fees as required under § 1915(a)(1).
R EVERSED and R EMANDED
6
(...continued)
based upon his prior litigation. In this court Mr. Turley initially
filed a pro se motion for IFP status and an affidavit of indigence,
Turley v. Gaetz, No. 09-3847 (Docket No. 4, Dec. 21, 2009), but
two weeks later he paid the $455 appellate fees. Nearly two
weeks after that, Mr. Turley’s attorneys filed their disclosure
statement. It is not known from the record whether Mr. Turley’s
attorneys are representing him pro bono or if the law firm
paid his appellate fees. On remand, however, the district court
must still make a finding as to indigence, and Mr. Turley’s
ability to pay his appellate fees may become part of that deter-
mination.
10-14-10