Tyrone Ellis v. Aric Simmon

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Michael J. Melloy and Duane Benton (UNPUBLISHED); Granting [4386718-2] motion to proceed on appeal in forma pauperis filed by Appellant Mr. Tyrone Ellis. [4411640] [16-1774]

United States Court of Appeals
For the Eighth Circuit
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No. 16-1774
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Tyrone Ellis
lllllllllllllllllllll Plaintiff - Appellant
v.
Aric Simmons, Advance Practice Nurse, Correct Care Solutions
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: May 27, 2016
Filed: June 14, 2016
[Unpublished]
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Before LOKEN, MELLOY, and BENTON, Circuit Judges.
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PER CURIAM.
Arkansas inmate Tyrone Ellis appeals a district court order revoking the grant
of leave to proceed in forma pauperis (IFP) in his 42 U.S.C. § 1983 action based on
a determination that he had three “strikes” within the meaning of 28 U.S.C. § 1915(g).
Our review of the docket sheets and orders in the cases identified as strikes reveals
that two of the dismissals qualified as strikes. See Owens v. Isaac, 487 F.3d 561, 563

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(8th Cir. 2007) (per curiam) (de novo review). Specifically, the preservice dismissals
in Ellis v. Hobbs, et al., No. 2:14-cv-00065 (E. Dist. Ark. Aug. 28, 2014), and in Ellis
v. McDaniel, No. 5:15-cv-00236 (E. Dist. Ark. July 27, 2015), were for failure to state
a claim. See 28 U.S.C. § 1915(g) (in no event shall inmate bring civil action or appeal
judgment in civil action if he has, on 3 or more prior occasions, while incarcerated or
detained, brought action or appeal in federal court that was dismissed on grounds that
it is frivolous, malicious, or fails to state claim upon which relief may be granted).
However, we find that the other two prior dismissals identified below--Ellis v.
Chandler, et al., No. 1:10-cv-01080 (W. Dist. Ark. 2011), and Ellis v. Chandler, et al.,
No. 1:11-cv-01006 (W. Dist. Ark. May 25, 2011)--did not qualify as strikes. While
some claims in each case were dismissed as frivolous or for failure to state a claim,
the claims against certain defendants were dismissed based on immunity, which is not
a basis cited in section 1915(g); and the orders did not reflect that the claims against
those who were immune from suit were alternatively dismissed because they were
frivolous or failed to state a claim. See Castillo-Alvarez v. Krukow, 768 F.3d 1219,
1219-20 (8th Cir. 2014) (per curiam) (dismissals based on immunity are not among
types of dismissals listed as strikes under section 1915(g); dismissal was not strike
where court determined that only named defendant was entitled to prosecutorial
immunity, and did not state action was frivolous, malicious, or failed to state claim).
Further, in applying section 1915(g), courts have focused on the dismissal of the entire
complaint or case, not on the dismissal of claims. See Tolbert v. Stevenson, 635 F.3d
646, 649-55 (4th Cir. 2011) (collecting cases for proposition that “action” in § 1915(g)
unambiguously means entire case or suit and thus that inmate’s entire action or appeal
must be dismissed on one or more of enumerated grounds to qualify as strike); see
also Orr v. Clements, 688 F.3d 463, 466 (8th Cir. 2012) (citing Tolbert for proposition
that “action” under § 1915(g) means “entire ‘case’ or ‘suit’”). Accordingly, because
Ellis had only two strikes when he filed the instant suit and appeal, we grant him leave

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to proceed in forma pauperis on appeal, we vacate the section 1915(g) dismissal, and
we remand for further proceedings.
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