Samuel Taylor v. Paula Phillips, et al

Filing

PER CURIAM OPINION FILED - THE COURT: PASCO M. BOWMAN, ROGER L. WOLLMAN and LAVENSKI R. SMITH (UNPUBLISHED); Granting [3774968-2] motion to proceed on appeal in forma pauperis filed by Appellant Mr. Samuel Lewis Taylor. [3788662] [11-1648]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1648
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Samuel Lewis Taylor,

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Appellant,
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v.
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Paula Huffman Phillips; Alex Clinton; *
Christy Clinton; Jennifer Brown;
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Jennifer Alexander; Chuck Dwyer,
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Superintendent, SECC; Johnny
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William, Functional Unit Manager,
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SECC; Jim Preston, Clothing Issue
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Supervisor, SECC; Steven Buhs,
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Caseworder Assistant, SECC; Omer
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Clark, Associate Superintendent,
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SECC; David Gaines, Caseworker
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Assistant, SECC; Dawn Horn,
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Caseworker, SECC; Sandria
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Hutcheson, Librarian, SECC; Tina
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Whitson, Correctional Officer II,
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SECC; John Roach, Correctional
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Officer I, SECC; John Hoskins,
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Correctional Officer I, SECC;
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Michael McGill, Correctional Officer I, *
SECC; Linda Manes, Correctional
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Officer I, SECC; Bill Harris,
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Associate Superintendent, SECC; Dan *
Smith, Factory Supervisor, SECC;
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Jason Lewis, Educational Supervisor, *
SECC; Jimmie Bell, Nurse/CMS,
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SECC; Unknown Hillie, Correctional *
Officer I, SECC; Unknown Kaiser,
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Appellate Case: 11-1648

Page: 1

Appeal from the United States
District Court for the Eastern
District of Missouri.
[UNPUBLISHED]

Date Filed: 05/18/2011 Entry ID: 3788662

Correctional Officer I, SECC;
Unknown Dorris, Caseworker,
SECC; Unknown Reed, Correctional
Officer II, SECC; Unknown Hack,
Correctional Officer I, SECC; Larry
Garris, Correctional Officer II, SECC;
Sharon Gifford, Functional Unit
Manager, SECC; Brian Allen,
Caseworker PCC; Jeffrey Turner,
Correctional Officer III, PCC;
Unknown Coffman, Correctional
Officer I, PCC; Unknown Rayfield;
Unknown Tammi, Nurse/CMS, PCC;
Unknown Bailey, Caseworker, PCC;
Jackie Laird, Mailroom Supervisor,
PCC; Ian Wallace, Associate
Superintendent, PCC; Unknown
Salvage, Grievance Officer, PCC;
Unknown Miller, Correctional Officer
I, PCC; Unknown Arcand, Caseworker,
PCC; Unknown Milam, Caseworker,
PCC; Unknown Horn, Correctional
Officer II, PCC; Unknown Francis,
Correctional Officer I, PCC; Unknown
Conrad, Correctional Officer I, PCC:
Cindy Griffith, Functional Unit
Manager, PCC; Unknown Demello,
Correctional Officer I, PCC; Unknown
Wilheight, Correctional Officer II,
SECC; Unknown McKinney,
Doctor/CMS, PCC; Unknown Nixon,
Functional Unit Manager, PCC,
Appellees.

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Date Filed: 05/18/2011 Entry ID: 3788662

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Submitted: May 13, 2011
Filed: May 18, 2011
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Before WOLLMAN, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
Missouri inmate Samuel Taylor appeals from the District Court’s order
dismissing his 42 U.S.C. § 1983 complaint without prejudice under 28 U.S.C.
§ 1915(g). Upon de novo review, we conclude that only two of the three cases that
the court identified qualify as strikes. See Owens v. Isaac, 487 F.3d 561, 563 (8th Cir.
2007) (per curiam) (standard of review). Specifically, the court erroneously counted
the dismissal of Taylor v. Schriro, No. 2:01-cv-38, as a strike because in that case,
some claims were dismissed for failure to state a claim while others were dismissed
without prejudice for improper venue. The plain language in § 1915(g), however,
requires that the entire action be dismissed on one or more of the three enumerated
grounds, that is, as frivolous or malicious or for failure to state a claim, before it
counts as a strike. See 28 U.S.C. § 1915(g) (requiring application of the three-strikes
bar if the prisoner has on three or more prior occasions while detained brought an
action or appeal in federal court that was dismissed as frivolous or malicious or for
failure to state a claim); see also Tolbert v. Stevenson, 635 F.3d 646, 647-55 (4th Cir.
2011) (collecting cases supporting the proposition that “action” in § 1915(g)
unambiguously means the entire case or suit, so that an inmate’s entire “action or
appeal” must be dismissed on grounds enumerated in the statute in order to count as
a strike); cf. Powells v. Minnehaha Cnty. Sheriff Dep’t, 198 F.3d 711, 713 (8th Cir.
1999) (per curiam) (noting that the reversal of the district court's dismissal of some

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Date Filed: 05/18/2011 Entry ID: 3788662

of the claims in a prisoner's suit eliminated one of the three strikes that had served as
the basis for dismissal of two later-filed cases).
Accordingly, we grant leave to appeal in forma pauperis, we reverse the
§ 1915(g) dismissal, and we remand for further proceedings.
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Date Filed: 05/18/2011 Entry ID: 3788662