Samuel Taylor v. Paula Phillips, et al


PER CURIAM OPINION FILED - THE COURT: PASCO M. BOWMAN, ROGER L. WOLLMAN and LAVENSKI R. SMITH (UNPUBLISHED); Granting [3774968-2] motion to proceed on appeal in forma pauperis filed by Appellant Mr.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

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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 11-1648 ___________ Samuel Lewis Taylor, * * Appellant, * * v. * * Paula Huffman Phillips; Alex Clinton; * Christy Clinton; Jennifer Brown; * Jennifer Alexander; Chuck Dwyer, * Superintendent, SECC; Johnny * William, Functional Unit Manager, * SECC; Jim Preston, Clothing Issue * Supervisor, SECC; Steven Buhs, * Caseworder Assistant, SECC; Omer * Clark, Associate Superintendent, * SECC; David Gaines, Caseworker * Assistant, SECC; Dawn Horn, * Caseworker, SECC; Sandria * Hutcheson, Librarian, SECC; Tina * Whitson, Correctional Officer II, * SECC; John Roach, Correctional * Officer I, SECC; John Hoskins, * Correctional Officer I, SECC; * Michael McGill, Correctional Officer I, * SECC; Linda Manes, Correctional * Officer I, SECC; Bill Harris, * Associate Superintendent, SECC; Dan * Smith, Factory Supervisor, SECC; * Jason Lewis, Educational Supervisor, * SECC; Jimmie Bell, Nurse/CMS, * SECC; Unknown Hillie, Correctional * Officer I, SECC; Unknown Kaiser, * 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 [UNPUBLISHED] Date Filed: 05/18/2011 Entry ID: 3788662 Correctional Officer I, SECC; Unknown Dorris, Caseworker, SECC; Unknown Reed, Correctional Officer II, SECC; Unknown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. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * -2- Appellate Case: 11-1648 Page: 2 Date Filed: 05/18/2011 Entry ID: 3788662 ___________ Submitted: May 13, 2011 Filed: May 18, 2011 ___________ Before WOLLMAN, BOWMAN, and SMITH, Circuit Judges. ___________ 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 -3- Appellate Case: 11-1648 Page: 3 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. ______________________________ -4- Appellate Case: 11-1648 Page: 4 Date Filed: 05/18/2011 Entry ID: 3788662

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