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 N OVEMBER 2, 2010
Before R IPPLE, K ANNE and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. Gregory Turley, an Illinois
prisoner, 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 the
2 No. 09-3847
“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 exception 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 district
court and remand with instructions to reconsider
Mr. Turley’s application to proceed IFP.1
I
BACKGROUND
In his complaint, filed in October 2009, Mr. Turley
contends that the defendants have worked together to
1
This opinion has been circulated among all judges of this
court in regular active service pursuant to Circuit Rule 40(e).
No judge favored to hear this case en banc.
Judge Flaum took no part in the consideration or decision of
this case.
No. 09-3847 3
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 disciplinary
charges, confinement in segregation without a valid
reason, interference with his access to the grievance
system and removal of his personal property. Mr. Turley
also filed an application to proceed IFP. Section 1915(g)
of Title 28 prohibits a prisoner from proceeding 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 applica-
tion, Mr. Turley disclosed that a different 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.2 Mr. Turley argued,
however, that those earlier suits should not be con-
sidered “strikes” because each action included some
claims that proceeded to a decision on the merits, along
with some claims that had been dismissed at screening.
2
Another district court judge of the same district had dismissed
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
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 particular, he alleged that
one of the defendant prison employees had threatened
him.
A review of Mr. Turley’s litigation history reveals
three relevant civil rights cases filed during his incar-
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
No. 09-3847 5
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
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 required
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 without
prejudice, thus permitting refiling after prepayment of the
full filing fee.3 Citing George v. Smith, 507 F.3d at 607-08,
and Boriboune v. Berge, 391 F.3d at 855, the district court
3
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
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, malicious or
for failure to state a claim. The court opined that
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 frivolous,
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
No. 09-3847 7
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
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 language,
§ 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
8 No. 09-3847
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) (providing
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 an action dis-
missed in its entirety on one or more of the three enumer-
ated 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
No. 09-3847 9
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.
See Mayfield v. Texas 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 lawsuit in its
entirety only if the complaint is devoid of unexhausted
claims. Id. at 220-21. If a complaint presents both ex-
hausted and unexhausted claims, the Court concluded,
only the unexhausted claims may be dismissed. Id. at
221. As the Court explained, “statutory references to an
10 No. 09-3847
‘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.
§ 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 Robinson v. Page, 170 F.3d 747, 748-49 (7th Cir.
1999)). In Robinson, we were faced with the question
whether a mixed “action,” meaning a complaint con-
taining 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 dis-
missed. Robinson, 170 F.3d at 748-49. We concluded
that “the natural reading of the statute” required dis-
missal 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
No. 09-3847 11
§ 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.
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
12 No. 09-3847
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 in-
centives 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 plaintiffs. 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.
No. 09-3847 13
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 vio-
lated 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 blunder-
buss complaint 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
14 No. 09-3847
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,
another for an appeal raising at least one frivolous ob-
jection 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 over-
estimated 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 ex-
No. 09-3847 15
plains how district courts should handle prisoners’ com-
plaints 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
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 enumer-
ated 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. 4 By
contrast, we have found little support for a claim-by-
4
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. Texas Dep’t of Crim-
inal 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
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-plain-
tiff’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. Berge, No. 04-cv-0015-C,
2005 WL 1320345, at *4-6 (W.D. Wis. June 1, 2005) (con-
cluding on remand that an individual plaintiff incurs
a strike only when “the total accumulation 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 remarks
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.5 We presume, there-
fore, that the creation of a circuit split was not in-
tended. Nevertheless, the district court’s reading of the
5
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).
No. 09-3847 17
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.6 Our
holding today clarifies that a strike is incurred under
§ 1915(g) when 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 com-
plaint 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
6
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).
18 No. 09-3847
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
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
unexhausted 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 administra-
tive remedies 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 frivo-
lous, malicious or for failure to state a claim does not
No. 09-3847 19
constitute a strike under § 1915(g). Accordingly, the
dismissal 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,7 we need not determine whether his allegations
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 instruc-
7
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
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, how-
ever, 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 determination.
20 No. 09-3847
tions 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
11-2-10