PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ERIC L. TOLBERT,
Plaintiff-Appellant,
v.
STEVENSON; DALRYMPLE; FRANKLIN
STEELE; NEELY; PRESTON, No. 09-8051
Lieutenant; ROBERT LEWIS; BILLIE
J. WEAVER; HORN, Sergeant;
MULLIS, Sergeant; BENNETT;
BRYANT, C. O.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Senior District Judge.
(3:09-cv-00382-GCM)
Argued: December 7, 2010
Decided: February 14, 2011
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Reversed and remanded by published opinion. Judge Duncan
wrote the opinion, in which Judge Niemeyer and Judge King
concurred.
2 TOLBERT v. STEVENSON
COUNSEL
ARGUED: Richard Donald Dietz, KILPATRICK STOCK-
TON, LLP, Winston-Salem, North Carolina, for Appellant.
Peter Andrew Regulski, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: Adam H. Charnes, KILPATRICK STOCKTON,
LLP, Winston-Salem, North Carolina, for Appellant. Roy
Cooper, Attorney General, State of North Carolina, Raleigh,
North Carolina, for Appellees.
OPINION
DUNCAN, Circuit Judge:
This appeal requires us to interpret the "three strikes" pro-
vision of the Prison Litigation Reform Act of 1995 ("PLRA"),
28 U.S.C. § 1915(g), which generally prohibits a prisoner
from proceeding in forma pauperis ("IFP") if he has previ-
ously had three or more actions dismissed as frivolous, mali-
cious, or for failing to state a claim. The district court denied
Eric Tolbert ("Tolbert") IFP status because he had brought at
least three prior lawsuits that were dismissed in part as frivo-
lous or for failing to state a claim, and Tolbert appealed.
Because we conclude, consistent with the view of the majority
of circuits to consider the issue, that the plain language of
§ 1915(g) applies only to actions dismissed entirely as frivo-
lous, malicious, or for failing to state a claim, we reverse.
I.
On September 1, 2009, Tolbert filed a complaint alleging
that correctional officers had subjected him to excessive force
and retaliated against him for filing grievances about these
allegations. Although the district court allowed Tolbert to pro-
ceed without paying an initial filing fee,1 it later revoked Tol-
1
Even if permitted to proceed IFP, prisoners are not excused from even-
tually paying the full amount of any filing fees. Section 1915 requires that
TOLBERT v. STEVENSON 3
bert’s IFP status based on the PLRA’s "three strikes" rule.
The rule prohibits a prisoner from proceeding IFP, absent
"imminent danger of serious physical injury," if he has "on 3
or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal . . . 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).
Before initiating the instant suit, Tolbert had filed at least
four other lawsuits while incarcerated: Tolbert v. Hassan, No.
10-cv-00014 (W.D.N.C. 2010); Tolbert v. Duda, No. 07-ct-
3088 (E.D.N.C. 2007); Tolbert v. Lightsey, No. 05-ct-428
(E.D.N.C. 2005); and Tolbert v. Munns, No. 05-ct-745
(E.D.N.C. 2005). In each of these cases, some—but not
all—of Tolbert’s claims were dismissed specifically as frivo-
lous or for failing to state a claim. In Hassan, some of Tol-
bert’s claims were dismissed for failure to state a claim; the
remaining claims were transferred to the Middle District of
North Carolina where the action is still pending. See No. 10-
cv-00014 (dismissed in part and transferred in part Jan. 19,
2010). In Duda and Munns, some of Tolbert’s claims were
dismissed as frivolous and Tolbert later voluntarily dismissed
his remaining claims without prejudice.2 See Duda, No. 07-ct-
3088 (dismissed in part Oct. 18, 2007); id. (voluntary dis-
missal approved Jan. 8, 2008); Munns, No. 05-ct-745 (dis-
missed in part Nov. 30, 2005); id. (voluntary dismissal
approved March 27, 2006). Finally, in Lightsey, Tolbert’s
a prisoner (1) pay an initial partial filing fee based on the funds available
in the prisoner’s account; and (2) make monthly payments of "20 percent
of the preceding month’s income credited to the prisoner’s account."
§ 1915(b)(1)-(2). Tolbert was excused from paying an initial fee only
because he had no funds in his inmate trust fund from which to assess an
initial partial filing fee.
2
The government asserts, and Tolbert does not contest, that Tolbert
never refiled any of his voluntarily dismissed claims within the applicable
statutes of limitations.
4 TOLBERT v. STEVENSON
claims against certain defendants were dismissed upon a
motion for judgment on the pleadings, while claims against
other defendants were later dismissed on summary judgment.
See 05-ct-428 (judgment on the pleadings granted July 21,
2006); id. (summary judgment granted Sept. 27, 2006).
On the basis of this filing history, the district court deter-
mined that Tolbert was "not entitled to proceed as a pauper
with this action because he previously has had at least three
actions dismissed for frivolity and/or his failure to state a
claim for relief." J.A. 23. It therefore dismissed Tolbert’s
complaint without prejudice to his right to refile his action
with payment of the proper fees. This appeal followed.
II.
On appeal, Tolbert argues that the district court erred in
classifying his prior proceedings as strikes for purposes of
§ 1915(g)’s three strikes provision. The government responds
that the district court was correct in characterizing three of
these cases as strikes.3 In the government’s view, the calcula-
tion of strikes under § 1915(g) should include "partial strikes"
where some claims were dismissed on § 1915(g) grounds and
no claim in the case ever reached adjudication on its merits.
We review de novo the appropriate interpretation of
§ 1915(g). See Broughman v. Carver, 624 F.3d 670, 674 (4th
Cir. 2010).
We begin by laying out in greater detail the parties’ con-
flicting positions regarding the appropriate interpretation of
§ 1915(g). We then turn to an analysis of § 1915(g), first con-
sidering the provision’s plain language and then addressing
the government’s argument that a recent Supreme Court deci-
sion renders that language ambiguous. We conclude by apply-
3
The government concedes that Hassan should not currently count as a
strike, as some claims are still pending. See Appellee’s Br. at 22.
TOLBERT v. STEVENSON 5
ing our interpretation of § 1915(g) to Tolbert’s litigation
history.
A.
Tolbert’s proposed interpretation of § 1915(g) is straight-
forward: he argues that the language of § 1915(g) mandates
that an entire action be dismissed as frivolous, malicious, or
for failing to state a claim in order for the action to count as
a strike. Accordingly, he claims that his "partial strikes"—in
which some of his claims were dismissed on these grounds,
but others were not—do not count as strikes under § 1915(g).
He therefore urges us to find that he is eligible for IFP status
in this appeal, and to reverse the district court’s order dismiss-
ing his action below.
The government asserts, on the other hand, that the term
"action" as used in § 1915(g) is ambiguous. To support this
position, it relies on the Supreme Court’s decision in Jones v.
Bock, 549 U.S. 199 (2007). Jones examined the term "action"
as specifically used in 42 U.S.C. § 1997e(a), a provision of
the PLRA mandating that "[n]o action shall be brought" until
administrative remedies are exhausted. See 549 U.S. at 220-
22. Based on this particular statutory phrasing, the Court in
Jones found that in § 1997e(a), the term "action" actually
meant "claim." Id. at 220-24. As Jones explained, the phrase
"no action shall be brought" is "boilerplate language" used
throughout the Federal Code, and has never been thought to
bar the meritorious portions of an action from proceeding
even if some claims are barred on non-exhaustion or statute
of limitations grounds. Id. Accordingly, Jones found that
reading "action" as "claim" in § 1997e(a) comported with the
general principle that courts should "proceed[ ] with the good
[claims] and leave[ ] the bad." Id. at 221. The Court did not
determine the meaning of "action" in other statutory contexts.
The government contends that Jones stands for the proposi-
tion that "action," as used throughout the PLRA, "can be a
6 TOLBERT v. STEVENSON
cipher, deriving its meaning not from common usage, but
from the plainly expressed intent of Congress." Appellee’s Br.
at 11. The government further argues that this purpose-based
approach to interpreting the PLRA counsels strongly in favor
of its reading of § 1915(g). Because Congress enacted the
PLRA "to address concerns about the ever-growing number
of prison-condition lawsuits that were threatening to over-
whelm the capacity of the federal judiciary," Green v. Young,
454 F.3d 405, 406 (4th Cir. 2006) (internal quotations omit-
ted), the government urges us to construe § 1915(g)’s three
strikes rule in a way that places greater limits on non-
meritorious prisoner litigation. To that end, the government
would require a district court tasked with determining whether
a prisoner has three strikes to first identify any previous par-
tial strikes, i.e., any prior suits dismissed at least in part on
enumerated § 1915(g) grounds, and then determine whether
any of the other claims in those suits eventually reached the
stage of adjudication on the merits. If none did, the govern-
ment proposes counting the partial strike as a § 1915(g) strike
in order to dissuade prisoners from bringing suits that lack
sufficient basis to reach adjudication on their merits.4
In other words, the government argues for a process in
which a prisoner who has had a suit dismissed in part for rea-
sons not listed in § 1915(g), but in part as frivolous, mali-
cious, or for failing to state a claim, might incur a strike under
§ 1915(g). Whether or not the prisoner incurred a strike would
depend upon whether he eventually proceeded to litigate any
of the claims dismissed on non-§ 1915(g) grounds to the stage
of adjudication on the merits. For example, under the govern-
ment’s theory, a prisoner that had his case dismissed in part
for failure to state a claim and then voluntarily dismissed the
remaining claims would incur a strike if he never re-filed the
4
The government concedes, however, that if a prisoner has a prior
action in which some claims were dismissed as frivolous, malicious, or for
failing to state a claim, but other claims reached adjudication on their mer-
its, this action should not count as a strike.
TOLBERT v. STEVENSON 7
voluntarily dismissed claims within the applicable statute of
limitations. Additionally, as the government clarified at oral
argument, under its proposed procedure, if a prisoner’s prior
suit was dismissed on summary judgment, the district court
evaluating strikes should review the prior case’s history to
determine whether summary judgment was granted because
the prisoner failed to state a claim or because no genuine issue
of material fact existed.
The government claims that under its reading of § 1915(g),
Tolbert should be deemed to have at least three strikes.
Accordingly, it asks us to deny Tolbert IFP status in this
appeal and to affirm the district court’s dismissal of Tolbert’s
suit. Alternatively, the government asserts that even if we do
not find that Tolbert has three strikes, we should hold that we
have discretionary authority to deny IFP status to Tolbert on
the ground that he is an abusive filer.
B.
(i)
Against this background of competing contentions, we turn
to the proper interpretation of 28 U.S.C. § 1915(g). Our analy-
sis begins, as it must, with the plain language of the statute.
See Green, 454 F.3d at 408. Section 1915(g) provides in full:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding
under this section [i.e., IFP] 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 seri-
ous physical injury.
8 TOLBERT v. STEVENSON
28 U.S.C. § 1915(g) (emphasis added). As the emphasized
portions of the statute indicate, the section speaks of prior
actions dismissed as frivolous, malicious, or for failure to
state a claim, not prior claims. As we have described, how-
ever, the government would have us read § 1915(g) to include
as strikes some, but not all, cases where some claims were
dismissed on enumerated grounds. We do not find the plain
language susceptible to this reading.
In referring to "an action . . . that was dismissed," § 1915(g)
unambiguously ascribes to the term "action" its typical mean-
ing of an entire case or suit. This "well-defined" meaning of
"action" is grounded in the Federal Rules of Civil Procedure,
which repeatedly employ the term "action" to mean an entire
suit. Turley v. Gaetz, 625 F.3d 1005, 1008-09 (7th Cir. 2010)
(examining the use of "action" in the Federal Rules of Civil
Procedure to support the conclusion that "action," as used in
§ 1915(g), unambiguously refers to an entire suit). For exam-
ple, Rule 1 of the Federal Rules of Civil Procedure states
"[t]hese rules govern the procedure in all civil actions," and
is followed by the declaration in Rule 2 that "[t]here is one
form of action—the civil action." Rule 3 then explains that
"[a] civil action is commenced by filing a complaint with the
court." And Rule 54(b) recognizes that an "action" may con-
tain several "claims" so that "any order or other decision . . .
that adjudicates fewer than all the claims . . . does not end the
action as to any of the claims." Fed. R. Civ. P. 54(b) (empha-
sis added). All of these rules use the term "action" to refer-
ence the overall procedure one uses to bring any number of
individual claims before a court.
The language of § 1915(g) employs the term "action" in the
same sense as the Federal Rules of Civil Procedure. Section
1915(g) couples the term "an action" with "an appeal" in the
phrase "brought an action or appeal." By listing the two types
of overarching procedures one can use to bring claims before
a court, § 1915(g)’s use of "action" logically refers to an
TOLBERT v. STEVENSON 9
entire suit, as opposed to any particular claim contained
within a suit.
Other subsections of § 1915 also use the term "action" to
mean an entire case or suit. For example, § 1915(a)(2) directs
a prisoner seeking to "bring a civil action or appeal a judg-
ment in a civil action" without payment to file certain forms.
Subsection (b) of § 1915 requires a prisoner who "brings a
civil action or files an appeal" IFP to eventually repay the fil-
ing fee in monthly installments. And subsection (e)(2)
explains that the court "shall dismiss the case," notwithstand-
ing partial payment of fees, if the "action or appeal" does not
state a claim or is frivolous or malicious. § 1915(e)(2)
(emphasis added). Similarly, § 1915(f)(1) uses "action" in
parallel with "suit" when it refers to judgments for cost ren-
dered "at the conclusion of the suit or action." These repeated
uses of "action" to mean an entire suit throughout other sub-
sections of § 1915 confirm that "action" as used in § 1915(g)
has the same meaning. See Nat’l Credit Union Admin. v. First
Nat. Bank & Trust Co., 522 U.S. 479, 501 (1998) (noting "the
established canon of construction that similar language con-
tained within the same section of a statute must be accorded
a consistent meaning").
Accordingly, we conclude that "action" in § 1915(g) unam-
biguously means an entire case or suit. Therefore, § 1915(g)
requires that a prisoner’s entire "action or appeal" be dis-
missed on enumerated grounds in order to count as a strike.5
5
This conclusion comports with our result in Green v. Young, 454 F.3d
405 (4th Cir. 2006), where we applied a similar plain language reading of
§ 1915(g)—in spite of the government’s policy arguments to the con-
trary—to find that a dismissal for failure to exhaust administrative reme-
dies did not count as a strike. As we explained there, "[b]ecause a
dismissal for failure to exhaust is not listed in § 1915(g), it would be
improper for us to read it into the statute." Id. at 409; cf. McLean v. United
States, 566 F.3d 391 (4th Cir. 2009) (refusing to treat a dismissal without
prejudice for failure to state a claim as a strike because "a dismissal with-
out prejudice for failure to state a claim does not fall within the plain and
unambiguous meaning of § 1915(g)’s unqualified phrase ‘dismissed . . .
[for] fail[ure] to state a claim’" (alterations in original)). It would be simi-
larly inappropriate to read "partial strikes" into § 1915(g).
10 TOLBERT v. STEVENSON
Most circuits that have examined § 1915(g) agree with our
straightforward reading. Most recently, the Seventh Circuit
held that "the obvious reading of the statute is that a strike is
incurred for every action dismissed in its entirety on one or
more of the three enumerated grounds." Turley, 625 F.3d at
1008-09. In so holding, the court in Turley succinctly
explained: "Section 1915(g) literally speaks in terms of prior
actions that were dismissed as frivolous, malicious or for fail-
ure to state a claim. The statute does not employ the term
‘claim’ to describe the type of dismissal that will incur a
strike." Id. at 1008. The D.C. Circuit has also adopted this
position, holding that because § 1915(g) "speaks of the dis-
missal of ‘actions and appeals,’ not ‘claims,’" "actions con-
taining at least one claim falling within none of the three
strike categories . . . do not count as strikes." Thompson v.
Drug Enforcement Admin., 492 F.3d 428, 432, 440 (D.C. Cir.
2007). The Fifth and Eighth Circuits have implicitly adopted
the same interpretation. See Mayfield v. Texas Dep’t of Crimi-
nal Justice, 529 F.3d 599, 617 (5th Cir. 2008) (finding that
prisoner did not incur a strike because some of his claims
should have survived through the summary judgment stage);
Powells v. Minnehaha Cnty. Sheriff Dep’t, 198 F.3d 711, 713
(8th Cir. 1999) ("The reversal as to some of Powells’s claims
in No. 98-4160 eliminates one of the ‘three strikes’ that was
the basis for the District Court’s dismissal of the two later-
filed cases."). But see Pointer v. Wilkinson, 502 F.3d 369, 376
(6th Cir. 2007) (holding that an action dismissed in part on
§ 1915(g) grounds but in part for failure to exhaust counts as
a strike "at least insofar as the new suit does not simply re-file
previously non-exhausted claims"). That most of our sister
circuits agree with our reading reinforces our conclusion that
§ 1915(g)’s meaning is clear and unambiguous.
(ii)
Ordinarily, our inquiry would end with a determination that
the language of the statute is unambiguous. See Triton Marine
Fuels Ltd., S.A. v. M/V PACIFIC CHUKOTKA, 575 F.3d 409,
TOLBERT v. STEVENSON 11
416-17 (4th Cir. 2009). However, the government argues that
we should look beyond plain language in this case because,
it contends, Jones established that the term "action" as used
in the PLRA is necessarily ambiguous and should be given a
meaning consonant with congressional purpose. We find this
argument unpersuasive here.
Jones did not suggest that "action" as used in § 1915(g) or
most other PLRA provisions is susceptible to multiple inter-
pretations. To the contrary, as explained earlier, the Court in
Jones departed from the plain meaning of "action" in inter-
preting a particular PLRA provision, 42 U.S.C. § 1997e(a).
And the Court arrived at its conclusion that "action" meant
"claim" in that provision only because it found that the spe-
cific phrasing of § 1997e(a)—"no action shall be
brought"—was "boilerplate language" borrowed from statutes
of limitations and other similar contexts, in which "action"
always means "claim." 549 U.S. at 220-21. Indeed, in inter-
preting this anomalous use of the term "action" in § 1997e(a),
the Court noted that in other places in the PLRA it is clear
that "action" means an "entire action." Id. at 222 ("[O]ther
sections of the PLRA distinguish between actions and claims.
. . . demonstrat[ing] that Congress knew how to differentiate
between the entire action and particular claims when it
wanted to . . . .").
Jones’s interpretation of this separate, "boilerplate" PLRA
provision does not insert ambiguity into the term "action" in
§ 1915(g). The government points to no reason to think that
§ 1915(g) contains "boilerplate language" that has tradition-
ally employed the word "action" to mean "claim." Cf. id. at
220. Instead, as we have already explained, multiple subsec-
tions of § 1915 repeatedly use the word "action" in ways that
reference the entire case.
We further note that even if we were to find the term "ac-
tion" as used in § 1915(g) to be ambiguous, we would not find
the government’s interpretation to be a plausible one. The
12 TOLBERT v. STEVENSON
government does not ask us simply to read "action" as
"claim," as was the case in Jones.6 Instead, the government’s
proposal would require that "action" in § 1915(g) be viewed
as "part of an action where no claim therein ever reaches adju-
dication on its merits." We find no support in the statute or in
Jones for such a tortured reading of § 1915(g).
(iii)
Similarly, we find the government’s position to be unsup-
ported by the policy concerns it identifies. The government
fears that our interpretation of § 1915(g) "poses a real danger
that inmates will purposefully ‘immunize’ themselves against
strikes by simply including unexhausted claims or other ‘cur-
able’ defects in their otherwise strike-triggering complaints."
Appellee’s Br. at 10. Such strategic pleading on the part of
inmates, the government argues, will increase the burdens on
district courts by allowing more suits to proceed IFP, contrary
to the goals of the PLRA. See Green, 454 F.3d at 406.
While fully agreeing with the government’s view that the
PLRA was enacted to control the volume of prisoner lawsuits
overburdening the resources of the federal courts, we are not
convinced that the government’s proposed reading of
§ 1915(g) would serve that goal. To the contrary, the govern-
ment’s approach would require a laborious analysis of the
procedural history of every prior lawsuit pursued by a pris-
oner to determine the ultimate fate of each claim contained
therein, including a calculation of the statute of limitations for
each claim not dismissed on its merits.7 The fact that the gov-
6
Reading "action" simply as "claim" in § 1915(g) would include as
strikes those actions that were dismissed in part under § 1915(g) but were
otherwise allowed to proceed to their merits. As noted supra note 4, the
government has already conceded that this interpretation would be prob-
lematic.
7
We also find problematic the government’s argument that even an
action dismissed on summary judgment can be considered dismissed "for
TOLBERT v. STEVENSON 13
ernment’s proposal actually has the potential to increase dis-
trict courts’ burdens calls its policy justifications into
question.
In any event, the government’s policy concerns can be
addressed in ways that do not compel a byzantine construc-
tion of a statutory term that appears plain on its face. District
courts have some redress against prisoners immunizing them-
selves from strikes by tacking on claims containing curable
defects. As we have explained, a court can dismiss even a
non-exhausted claim on § 1915(g) grounds in those cases
"where evidence of frivolousness or malice exists beyond the
mere fact that exhaustion has not been obtained."8 Green, 454
F.3d at 409; cf. Jones, 549 U.S. at 216 (noting that failure to
exhaust can be a basis for dismissal for failure to state a
claim).
Furthermore, the government itself has identified a possible
remedy for prisoner abuse of IFP status. It has argued, and the
D.C. Circuit has previously held, that courts have "discretion-
ary authority to deny IFP status to prisoners who have abused
the privilege" even when three strikes are not present. Butler
v. Dep’t of Justice, 492 F.3d 440, 444 (D.C. Cir. 2007). In
fact, the government has asked us to exercise this authority to
failure to state a claim," so long as the district court’s relevant order and
the record demonstrate that the court granted summary judgment because
the plaintiff had not made adequate allegations, rather than because the
defendant had demonstrated the absence of any genuine issues of material
fact. To require district courts to so parse summary judgment orders and
their supporting documents would even further increase their workload,
again straying far afield of the purpose of the PLRA.
8
This authority originates in 42 U.S.C. § 1997e(c)(2), which provides:
In the event that a claim is, on its face, frivolous, malicious, fails
to state a claim upon which relief can be granted, or seeks mone-
tary relief from a defendant who is immune from such relief, the
court may dismiss the underlying claim without first requiring the
exhaustion of administrative remedies.
14 TOLBERT v. STEVENSON
deny Tolbert IFP status even if we find he does not have three
strikes.
The district court has not yet been called upon to exercise
its discretionary authority as an alternative ground for denying
Tolbert IFP status, and we decline to consider such a request
in the first instance. Cf. Bostick v. Stevenson, 589 F.3d 160,
165 (4th Cir. 2009). Accordingly, we need not decide at this
juncture whether such discretionary authority exists. Assum-
ing, however, without deciding that courts have this authority,
it further undermines the government’s argument that
§ 1915(g)’s plain language must be ignored in order to pre-
vent prisoner abuse of the IFP privilege.
For the foregoing reasons, we decline to adopt the govern-
ment’s position that partial strikes count as strikes under
§ 1915(g) so long as no claim contained therein ever reaches
adjudication on its merits. Section 1915(g)’s command is
unambiguous: absent threat of serious injury, a prisoner loses
the right to proceed IFP if he has brought three or more
actions that were dismissed entirely as frivolous, malicious, or
for failure to state a claim.
C.
It remains to be determined whether, under our interpreta-
tion of § 1915(g), Tolbert has incurred three strikes. We con-
clude that none of the three suits relied on by the government
counts as such.
In Duda and Munns, the district court dismissed some of
Tolbert’s claims as frivolous and Tolbert later voluntarily dis-
missed the remainder of his claims without prejudice.
Because a voluntary dismissal is not one of the grounds listed
in § 1915(g), these actions do not count as strikes.
In Lightsey, Tolbert’s claims against certain defendants
TOLBERT v. STEVENSON 15
were dismissed upon a motion for judgment on the pleadings,9
while claims against other defendants were later dismissed on
summary judgment. The government argues that although cer-
tain defendants chose to bring a motion for summary judg-
ment rather than a motion to dismiss, the district court’s grant
of summary judgment equates to a dismissal for failure to
state a claim. But a grant of summary judgment to defendants
also is not one of the grounds listed in § 1915(g), and there-
fore Lightsey also does not count as a strike. See Richardson
v. Ray, 2010 WL 4706009, at *1 (4th Cir. Nov. 22, 2010) (per
curiam) (unpublished disposition) (finding that dismissal of
an action on summary judgment did not count as a strike).
Because none of these actions counts as a strike under
§ 1915(g), we find that the district court erred in denying Tol-
bert the right to proceed IFP in this suit on the ground that he
had three strikes. We therefore grant him IFP status for pur-
poses of this appeal and reverse the district court’s order dis-
missing his case. We do not, however, determine Tolbert’s
eligibility for IFP status upon remand, as the question of
whether Tolbert might be precluded from proceeding IFP on
other grounds remains open.
III.
The holding of the district court is reversed and this case
is remanded for further proceedings consistent with this opin-
ion.
REVERSED AND REMANDED
9
As Tolbert’s counsel acknowledged at oral argument, the standards for
judgment on the pleadings are identical to the standards for a motion to
dismiss. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.
1999). Accordingly, if a prisoner’s case were dismissed, in its entirety,
upon a motion for judgment on the pleadings for failure to state a claim,
this too would constitute a strike against the prisoner, as failure to state a
claim is an enumerated § 1915(g) ground. But such is not the case here.