[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14242 ELEVENTH CIRCUIT
AUGUST 9, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00238-CV-OC-10GRJ
JEREMY PINSON,
Plaintiff-Appellant,
versus
J. GRIMES,
Senior Officer,
R. MCCOLLOUGH,
Lieutenant, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 9, 2010)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Jeremy Pinson, a pro se prisoner, appeals the district court’s dismissal, with
prejudice, of his civil rights complaint filed pursuant to 28 U.S.C. §§ 1331, 1343.
Pinson raises several issues on appeal, which we address in turn. After review, we
vacate and remand in part, and affirm in part.
I.
Pinson first asserts the district court abused its discretion when it dismissed
his complaint with prejudice. He asserts he never received the order to show cause
as to why his case should not be dismissed because between June 17, 2009, and the
current appeal he had been placed in restraints several times and had transferred
prisons twice. He contends his restraints and transfers “likely explain the non-
delivery of the June 17, 2009 Court Order.”1
We review a district court’s dismissal of a litigant’s complaint with
prejudice under 28 U.S.C. § 1915 for abuse of discretion. See Camp v. Oliver, 798
F.2d 434, 436-39 (11th Cir. 1986). Dismissal with prejudice is “a drastic sanction
to be imposed only if lesser sanctions are inadequate.” Id. at 436. In Camp, we
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Generally, we will not consider an issue not raised before the district court. Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). However, because a
“a circuit court’s power to entertain an argument raised for the first time on appeal is not a
jurisdictional one,” we will consider an issue raised for the first time on appeal under certain
circumstances, including when the party had no opportunity to raise the issue at the district court
level. Id. at 1332. We will review Pinson’s issues on appeal because based on Pinson’s
pleadings and assertions, it appears Pinson did not receive the district court’s Order to Show
Cause and, thus, did not have an opportunity to raise any of his current issues before receiving an
order of dismissal.
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found the district court abused its discretion by automatically dismissing the
litigant’s petition with prejudice when there was “no finding of bad faith,
litigiousness or manipulative tactics.” Id. at 438.
Here, the district court failed to consider whether lesser sanctions were
adequate. Although the district court commented it had to research Pinson’s filing
history on its own, it did not specifically find Pinson had omitted the cases in bad
faith or was attempting to manipulate the court. Accordingly, the district court
abused its discretion by dismissing Pinson’s complaint with prejudice, and we
vacate and remand as to this issue.
II.
Pinson next asserts the district court erred by issuing him a strike, pursuant
to 28 U.S.C. § 1915(g), for abuse of the judicial process for failing to list all related
court cases on his complaint under penalty of perjury. He asserts the district court
erred because (1) he could not disclose information he did not possess; (2) there
was no evidence the failure to disclose was deliberate or an intentional effort to
defraud the court; (3) the law did not require a detailed disclosure; and (4) if he had
been barred from filing a lawsuit as a pauper by § 1915(g), the defendants should
have raised those grounds. We review the district court’s determination of
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qualifying strikes de novo. Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998),
abrogated on other grounds by Jones v. Bock, 127 S. Ct. 910 (2007).
A prisoner who brings a civil action or files an appeal in forma pauperis,
“shall be required to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1).
The court shall assess and collect a partial filing fee when funds exist. Id. An
exception exists for prisoners who have “no assets and no means by which to pay
the initial partial filing fee.” Id. § 1915(b)(4). However, the statute provides that:
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 detained 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.
Id. § 1915(g). This provision is known as the “three strikes” provision and
requires frequent filer prisoners to prepay the entire filing fee before federal courts
may consider their lawsuits and appeals. Rivera, 144 F.3d at 723.
In Rivera, we discussed the district’s finding the litigant had “lied under
penalty of perjury about the existence of a prior lawsuit.” As a sanction, the
district court dismissed the action without prejudice, concluding the litigant had
abused the judicial process. Id. at 731. “Although the district court may not have
uttered the words ‘frivolous’ or ‘malicious,’ dismissal for abuse of the judicial
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process [was] precisely the type of strike that Congress envisioned when drafting
section 1915(g).” Id. We concluded the district court did not err in counting that
case as a strike against the litigant. Id.
Although Pinson listed two cases in response to the question whether he had
“initiated other actions . . . in either state or federal court that relate[d] to the fact or
manner of [his] incarceration (including habeas corpus petitions) or the conditions
of [his] confinement,” Pinson should have listed at least two other federal cases.
Pinson initiated two other federal cases within a month of filing the complaint at
issue. Even if Pinson did not have access to his legal materials when he filed his
complaint, he would have known he had filed two other cases within the previous
month. Thus, the district court did not err in finding an abuse of judicial process
and issuing a strike, and we affirm as to this issue.
III.
Pinson also asserts the “three strikes” provision of 28 U.S.C. § 1915(g)
violates the First Amendment’s “right to petition.” In Rivera, we held that
§ 1915(g) did not violate the First Amendment’s right to access the courts because
frequent filer prisoners’ access to the courts remained “adequate, effective, and
meaningful” even though § 1915(g) “serve[d] to disqualify them from prepaying
partial, as opposed to entire, federal court filing fees during their term of
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incarceration.” Id. Thus, this argument is foreclosed by precedent and we affirm
as to this issue.
IV.
Upon review of the record on appeal, and after consideration of Pinson’s
appellate brief, we affirm in part, and vacate and remand in part.
AFFIRMED in part; VACATED and REMANDED in part.
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