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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14283
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-22579-KMM
LOUIS ANDREW WOOD,
Plaintiff-Appellant,
versus
J. WILLIAMS,
Ex-Assistant Warden/Grievance Coordinator, Dade
Correctional Institution, in his individual capacity,
L. NORWOOD,
Ex-Assistant Warden/Grievance Coordinator, Dade
Correctional Institution, in his individual capacity,
N. THORTON,
Ex-Librarian, Dade Correctional Institution, in her
individual capacity,
O. LAFONT, Pharmacy technician, Dade Correctional Institution, in his
individual capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 5, 2018)
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Before MARCUS, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Louis Wood, a prisoner proceeding pro se, appeals the district court’s
dismissal of his complaint under the three strikes provision of the Prison Litigation
Reform Act (“PLRA”). Wood argues that the district court shouldn’t have
dismissed his complaint, because he has, at most, two strikes against him. The
record is in accord with Wood’s view of the case.
We review de novo interpretations of the PLRA, including whether prior
civil actions count as strikes under
28 U.S.C. § 1915(g). See Daker v. Comm’r,
Ga. Dep’t of Corr.,
820 F.3d 1278, 1283–86 (11th Cir. 2016). The three strikes
provision of the PLRA says:
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.
28 U.S.C. § 1915(g). As the text of § 1915(g) makes clear, a dismissal qualifies as
a strike only if it was based on a finding of frivolousness, maliciousness, or failure
to state a claim upon which relief may be granted. See Daker, 820 F.3d at 1283–
84.
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By our count, Wood has filed seven civil suits. At most, only two of those
suits count as strikes. Wood concedes that Wood v. Bronson, 6:97-cv-01250-PCF
(M.D. Fla. Jan. 6, 1998), is a strike, as the district court found. The docket reveals
that it was dismissed as frivolous. Id. Next, Wood argues that Wood v. Sadd,
8:06-cv-00817-JSM-TBM (M.D. Fla. June 6, 2006), does not count as a strike,
even though it was dismissed for failure to state a claim. Since Wood has not
offered any argument aside from his belief that the district court got it wrong, we
reject that argument and conclude the district court properly counted Wood v. Sadd
as a strike. See Daker, 820 F.3d at 1284 (“We must interpret the order of
dismissal and figure out what the dismissing court actually did.”).
None of Wood’s other suits count as strikes. Wood v. Orange Cty. Corr.
Div., et al., 6:97-cv-01249-PCF (M.D. Fla. Jan. 6, 1998), was dismissed for
failure to follow IFP motion procedures, as opposed to one of the bases set by the
PLRA. Wood v. Does, et al., 6:97-cv-01436-ACC (M.D. Fla. Feb. 1, 1999), was
dismissed for want of prosecution, which does not qualify as a strike. Daker, 820
F.3d at 1285 (“A dismissal for want of prosecution . . . cannot be a strike under
the [PLRA].”). Wood v. Decker, 6:98-cv-00152-PCF (M.D. Fla. Feb. 19, 1998),
was dismissed for lack of jurisdiction, which is not a strike. See Daker, 820 F.3d
at 1284 (“All we can deduce from a mere dismissal for lack of jurisdiction is that
the prisoner’s assertion of jurisdiction was wrong; we cannot know whether . . .
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the higher standard for frivolous was satisfied unless the court says so.”). In
Wood v. Todd, et al, 6:98-cv-00158-ACC (M.D. Fla. Nov. 11, 1998), the district
court granted summary judgment for the defendants, which is distinct from a
finding of frivolousness or a dismissal for failure to state a claim and, thus, is not
an “enumerated ground[]” under § 1915(g). See Daker, 820 F.3d at 1284. This
means that Wood v. Todd, et al. is not a strike, in contrast to the district court’s
finding to the contrary. See Daker, 820 F.3d at 1283–84.
Finally, Wood’s only other civil suit—Wood v. Moore, et al., 6:99-cv-
00904-GKS-DAB (M.D. Fla. Sept. 12, 2001), a
28 U.S.C. § 2254 petition
challenging Wood’s state criminal conviction, which was dismissed with
prejudice—does not count as a strike. In Anderson v. Singletary,
111 F.3d 801
(11th Cir. 1997), this Court held that another sub-section of the PLRA,
28 U.S.C.
§ 1915(a)(2), does not apply in proceedings under
28 U.S.C. § 2254.
Id. at 806.
Based on a review of the entire statute, including the three strikes provision, §
1915(g), this Court determined “that the PLRA was not intended to apply in
habeas corpus.” Id. “Having already determined that Congress did not intend the
PLRA to apply to these types of petitions for habeas corpus, there is simply no
rational basis for us to treat the three strikes provision any differently.” Jones v.
Smith,
720 F.3d 142, 146
(2d Cir. 2013) (citation omitted).
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Therefore, Wood has, at most, two strikes, and the district court erred by
dismissing Wood’s complaint pursuant to § 1915(g). We reverse the judgment of
the district court and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
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