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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13169
Non-Argument Calendar
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D.C. Docket No. 3:10-cv-00070-WBH
WESLEY EUGENE DOLLAR,
Plaintiff-Appellant,
versus
COWETA COUNTY SHERIFF OFFICE,
MEDICAL STAFF,
SGT. PAT H. LYONS,
SHERIFF MICHAEL S. YEAGER,
CAPTAIN LYNN WOOD,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 27, 2013)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
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Wesley Eugene Dollar, a Georgia prisoner proceeding pro se, appeals the
district court’s order dismissing his 42 U.S.C. § 1983 civil rights complaint. The
district court dismissed Dollar’s complaint without prejudice under the three
strikes provision of 28 U.S.C. § 1915(g), concluding that Dollar had been
erroneously granted leave to proceed in forma pauperis. After review, we vacate
the district court’s order of dismissal and remand this appeal for further
proceedings.
I. PROCEDURAL HISTORY
On June 11, 2010, Dollar filed a § 1983 complaint against the Coweta
County Sheriff Office, the Coweta County Jail medical staff, and various prison
officers. Dollar’s complaint alleged that in November 2008, he was arrested and
taken to the Coweta County Jail. Dollar alleged that, while at the jail, (1) he was
interviewed without being advised of his Miranda rights and while still under the
influence of pain medication and needing detoxification; (2) during the interview,
he was tightly handcuffed to a chair, which injured his left hand; (3) he was forced
to sleep on the floor for three weeks due to overcrowding; (4) he did not have
access to fresh drinking water, suffered respiratory problems due to a raw sewage
leak and staph infections from rusty beds and showers; (5) jail medical staff
provided inadequate medical treatment for his injured left hand, spinal injury and
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respiratory problems; and (6) he was denied access to a law library or other legal
assistance and the right to exhaust his administrative remedies.
The district court dismissed Dollar’s complaint as frivolous pursuant to 28
U.S.C. § 1915A, concluding that his claims of unlawful confinement were
improperly brought under § 1983 and should have been brought as a habeas
petition. The district court dismissed his claims relating to excessive force and
confinement conditions because Dollar had not exhausted all administrative
remedies at the jail.
Dollar appealed to this Court, which affirmed the district court’s dismissal of
his unlawful confinement claims. See Dollar v. Coweta Cnty. Sheriff Office, et al.,
446 F. App’x 248, 251 (2011). However, this Court vacated the dismissal of
Dollar’s excessive force and conditions-of-confinement claims and ordered the
appeal remanded to the district court as to those claims, concluding that it was not
clear from the face of the complaint that Dollar had failed to exhaust available
administrative remedies. Id. at 251-52.
II. REMAND BEFORE THE DISTRICT COURT
On remand from this Court, the district court determined sua sponte that
Dollar previously had filed numerous civil actions in federal courts while
incarcerated, at least three of which had been dismissed as frivolous pursuant to 28
U.S.C. § 1915(g). The district court therefore concluded that, in light of these
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dismissals, § 1915(g) prohibited Dollar from bringing any civil actions while
proceeding in forma pauperis. On this basis, the district court found that it had
erroneously granted Dollar leave to proceed in forma pauperis and dismissed his
§ 1983 complaint without prejudice. Thereafter, Dollar filed a timely notice of
appeal. 1
III. DISCUSSION
Under the Prisoner Litigation Reform Act (“PLRA”) prisoners are permitted
to file only three meritless suits in the in forma pauperis status. 28 U.S.C.
§ 1915(g). Specifically, the “three strikes” provision of the PLRA provides:
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. The purpose of the PLRA is to conserve judicial resources by preventing
meritless cases initiated by prisoners. Vanderberg v. Donaldson, 259 F.3d 1321,
1324 (11th Cir. 2001). “After the third meritless suit, the prisoner must pay the full
filing fee at the time he initiates suit.” Id.
Our published decisions have consistently looked at the time of filing when
considering whether § 1915(g) prevents a prisoner from proceeding in forma
1
We review de novo the district court’s dismissal of a complaint pursuant to 28 U.S.C.
§ 1915(g). Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).
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pauperis. See Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004) (stating
that a prisoner is prevented from proceeding in forma pauperis “after he has filed
three meritless lawsuits” (emphasis added)); Dupree v. Palmer, 284 F.3d 1234,
1236 (11th Cir. 2002) (examining whether a prisoner’s complaint fell under
§ 1915(g) “at the moment of filing”)); Vanderberg, 259 F.3d at 1324 (“After the
third meritless suit, the prisoner must pay the full filing fee at the time he initiates
suit.” (emphasis added)). The plain reading of § 1915(g) also suggests that strikes
are to be counted at the time the complaint is filed. The relevant language of the
provision reads “[i]n no event shall a prisoner bring a civil action . . . if the
prisoner has, on 3 or more prior occasions . . . 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. . . .” 28 U.S.C. § 1915(g) (emphasis added).
After review of Dollar’s litigation record, we conclude that the district court
erred when it dismissed Dollar’s complaint under § 1915(g). When Dollar filed his
complaint in the present case on June 11, 2010, he only had “one strike” against
him, based on the dismissal of his 2007 case for frivolousness. See Dollar v.
Duffey, 3:07-cv-0085-JTC (N.D. Ga., dismissed September 28, 2007). With the
exception of this 2007 case, the district court supported its dismissal order by
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referencing cases brought by Dollar that were dismissed in 2011. 2 As such, Dollar
filed his complaint in the present case prior to becoming a “three-striker,” and the
district court’s conclusion that Dollar was prohibited from proceeding in forma
pauperis is erroneous.
Accordingly, we vacate the district court’s dismissal order and remand this
appeal to the district court for further proceedings consistent with this opinion. 3
VACATED AND REMANDED.
2
In support of its holding, the district court cited to these cases filed by Dollar: Dollar v.
Carter, Case No. 11-13591 (11th Cir. Nov. 23, 2011), Dollar v. Carter, Case No. 10-15195 (11th
Cir., Apr. 15, 2011); Dollar v. Carter, 5:10-cv-208 (M.D. Ga., July 26, 2011); Dollar v. Kemp,
3:11-cv-0018-WLB (M.D. Ga., July 8, 2011); Dollar v. Newnan Times-Herald, et al., 3:10-cv-
83-WBH (N.D. Ga., Jan. 3, 2011). Dollar’s 2007 case was Dollar v. Duffey, 3:07-cv-0085-JTC
(N.D. Ga., Sept. 28, 2007).
3
Dollar’s request, made by letter dated September 25, 2012, and construed by this Court
as a motion for sanctions, is DENIED.
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