Feathers v. McFaul , 274 F. App'x 467 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0209n.06
Filed: April 22, 2008
No. 07-3930
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAVID E. FEATHERS,
Plaintiff-Appellant,
v. On Appeal from the United
States District Court for the
GERALD T. MCFAUL, Sheriff, et al., Northern District of Ohio at
Cleveland
Defendants-Appellees.
/
Before: GUY, SUHRHEINRICH, and GIBBONS, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Plaintiff David E. Feathers, a state prisoner
proceeding pro se, appeals from the dismissal of this civil action without prejudice pursuant
to the so-called “three strikes” provision of 28 U.S.C. § 1915(g). Concluding upon review
that at least two of the four previously dismissed lawsuits identified by the district court
should not be counted as “strikes,” we reverse dismissal of the complaint and remand for
further consideration of the application to proceed in forma pauperis (IFP).
I.
The complaint in this case, filed with an application to proceed without prepayment
of fees on January 26, 2007, alleged a failure to protect plaintiff from assault and severe
injury by another inmate while in protective custody at the Cuyahoga County Jail, and
No. 07-3930 2
deliberate indifference to his medical needs in the aftermath. Plaintiff alleged that he was
in a coma for three days and recovered but continued to experience headaches and buzzing
in his ears. Plaintiff also alleged that since his transfer to the Lake Erie Correctional
Institution, prison officials have demonstrated indifference to his medical needs by forcing
him to attend GED classes and not assigning him to a lower bunk. It is also alleged that
plaintiff was subjected to retaliatory actions because of his complaints concerning the alleged
failure to accommodate his medical needs. In prescreening the case before service upon the
defendants, the district court ordered that the case be dismissed without prejudice because:
Feathers has on at least three occasions filed a civil action failing to
state a claim in this court. See Feathers v. Gansheimer, Case No. 1:06 CV
487; Feathers v. Portage County, 5:05 CV 681; Feathers v. Wilson, 4:01 CV
1708; Feathers v. Brown, 5:00 CV 2430. Thus, as the complaint in the instant
action does not contain allegations reasonably suggesting he is in imminent
danger of serious physical injury, he may not proceed in forma pauperis.
(Order of 2/8/07, p.2.) Plaintiff sought reconsideration, arguing that (1) he was not granted
leave to proceed IFP in these cases; (2) he was not served with notice of dismissal in two of
the four cases; and (3) he was alleging imminent danger in his requests for injunction. The
motion was denied in a marginal “non-document” order, a motion for extension of time to
file notice of appeal was granted, and plaintiff was permitted to appeal IFP.
II.
Section 1915(g), adopted as part of the Prison Litigation Reform Act of 1995 (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 [without prepayment of fees] if the
prisoner has, on 3 or more occasions, while incarcerated or detained in any
No. 07-3930 3
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.
Plaintiff’s main argument seems to be that two of the four previously dismissed prisoner civil
rights cases should not have been counted as “strikes” because he says he never received
notice of their dismissal. The statute, however, imposes no notice requirement for prior
dismissals to count as a “strike.”
Nonetheless, our review of the docket sheets and orders entered in the four mentioned
cases reveals that although they were all dismissed, at least two of them were dismissed for
failure to adequately plead exhaustion of administrative remedies as required by 28 U.S.C.
§ 1997e. This court addressed a related issue concerning the counting of “strikes” under §
1915(g) in Pointer v. Wilkinson, 502 F.3d 369 (6th Cir. 2007), and held that a prisoner’s prior
complaint dismissed in part for failure to state a claim and in part without prejudice for
failure to exhaust administrative remedies would qualify as a “strike.” That is, the inclusion
of some claims dismissed for failure to exhaust would not prevent the case from counting as
a strike where other claims were dismissed for failure to state a claim.
The Pointer decision highlights that a dismissal without prejudice for failure to
adequately plead exhaustion may be distinct from a dismissal for failure to state a claim upon
which relief may be granted; only the latter being one of the three grounds enumerated in the
statute as qualifying as a strike. While it remains possible for failure to exhaust to be a basis
for dismissal under Fed. R. Civ. P. 12(b)(6), see Jones v. Bock, 127 S. Ct. 910, 921 (2007),
the dismissal orders in Feathers v. Gansheimer and Feathers v. Wilson reflect that those
No. 07-3930 4
cases were dismissed sua sponte and in their entirety for failure to satisfy this court’s now-
abrogated requirement that prisoners specifically plead exhaustion of their administrative
remedies. The dismissals of those complaints therefore were not dismissals on the grounds
that the cases were frivolous, malicious, or failed to state a claim upon which relief may be
granted. See Snider v. Melindez, 199 F.3d 108, 112 (2d Cir. 1999) (concluding that failure
to state a claim as used in § 1997e(c) and § 1915(g) does not include failure to exhaust
administrative remedies—at least absent a finding that the failure to exhaust permanently
bars the suit); see also Green v. Young, 454 F.3d 405, 409 (4th Cir. 2006) (holding that “a
routine dismissal for failure to exhaust administrative remedies does not count as a strike
under § 1915(g)”).
Finding that at least two of the four prior dismissals should not have been counted as
“strikes,” we REVERSE the dismissal in this case and REMAND for further consideration
of plaintiff’s application to proceed without prepayment of fees.1
1
Accordingly, we need not address plaintiff’s argument that the district court erred in finding that
he had not alleged facts reasonably suggesting that he was under imminent danger of serious physical injury.