James Taylor v. First Medical Management , 508 F. App'x 488 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1290n.06
No. 10-6411 FILED
Dec 14, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
JAMES WILLIAM TAYLOR; )
a.k.a. Lufti Shafq Talal, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Plaintiff-Appellant, ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
v. )
) OPINION
)
FIRST MEDICAL MANAGEMENT, (Director) )
Lois Deberry Special Needs Facility (Health Care )
Providers); F/N/U JONES, CO, Female )
Correctional Officer; F/N/U JONES, CO, Male )
Correctional Officer; BETTY THORTEN, L.P.N. )
II; MICHAEL L/N/U, House Nurse Supervisor; )
F/N/U BUCHANAN, R.N., House Nurse )
Supervisor; B.J. RHODES, R.N.; TONI L/N/U, )
House Nurse Supervisor; F/N/U MCNEAL; F/N/U )
SALCEDO, Doctors; MARK KING, Health )
Administrator; DEBRA JOHNSON, Deputy )
Warden; RONALD COLSON, Warden; DENNIS )
DAVIS, Grievance Board Chairperson; ALAYNA )
DUFFEL; SHEREEN HASSAN, Grievance Board )
Members; REUBEN HODGE, Warden, Assistant )
Commissioner, Operation, Tennessee Department )
of Correction; GEORGE LITTLE, Commissioner, )
Tennessee Department of Correction, )
)
Defendants-Appellees. )
BEFORE: MERRITT, McKEAGUE, and STRANCH, Circuit Judges.
McKeague, Circuit Judge. Plaintiff-appellant, James William Taylor, timely appeals the
district court order denying him in forma pauperis status. Taylor argues the district court erred in
No. 10-6411
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determining that he had amassed three strikes under 28 U.S.C. § 1915(g) and that he had not pled
imminent danger of serious physical injury. The district court’s determination prohibited Taylor
from proceeding in forma pauperis, which ultimately foreclosed Taylor’s action. We reverse the
decision of the district court and remand.
BACKGROUND
Appellant James William Taylor is an inmate at Whiteville Correctional Facility in
Whiteville, Tennessee. On May 5, 2010, he filed a complaint against First Medical Management and
corrections employees of the State of Tennessee. Taylor brought his claim under 42 U.S.C. § 1983
alleging that the denial of pain medication and other post-surgery medical care constituted deliberate
indifference to his serious medical needs in violation of the Eighth Amendment. In conjunction with
his complaint, Taylor applied for in forma pauperis status. The district court initially granted
Taylor’s application and referred the case to a magistrate judge for scheduling and pretrial motions.
On August 10, 2010, the magistrate judge issued a report and recommendation stating that
Taylor had amassed three strikes under 28 U.S.C. § 1915(g) and therefore could not proceed in forma
pauperis. There are four cases in question. The magistrate judge relied on three cases: Talal v.
McVey, M.D. Tenn. No. 1:96-cv-00187; Stewart and Talal v. Pully, M.D. Tenn. No. 1:96-cv-00195;
and Talal v. Myers, M.D. Tenn. No. 1:00-cv-00059.1 The magistrate judge also noted that Taylor
had been the plaintiff in a fourth case, Talal v. Little, M.D. Tenn. No. 3:03-cv-00928, where Taylor
appealed the denial of his motion for a new trial after a jury found for the defendants. This court
1
Taylor is also known as Lufti Shafq Talal, and he filed his previous suits under the name
Talal.
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affirmed the denial in Talal v. White, No. 09-5707 (6th Cir. July 14, 2010). The magistrate judge
did not indicate whether the White appeal counted as a strike.
Taylor filed untimely objections to the report and recommendation. In his objections, he
argued that he had settled several of his claims in Talal v. Myers, and therefore, Myers should not
count as a strike. He also argued that he should be permitted to proceed in forma pauperis because
he was under imminent danger of serious physical injury at the time he filed his complaint.
On October 18, 2010, the district court considered Taylor’s untimely objections and adopted
the magistrate’s report and recommendation. The district court noted that “the Court’s review of
[Talal v. Myers] shows that while Plaintiff settled some of his claims with certain defendants, the
vast majority of his claims were dismissed for failure to state a claim.” R. 103, Dist. Ct. Order at
2, Page ID # 330. The court found that Taylor had three strikes, counting Myers but not specifying
what other cases constituted strikes. However, by adopting the magistrate’s report and
recommendation the district judge implicitly found that Stewart v. Pully and Talal v. McVey were
strikes. The court also found that Taylor failed to plead imminent danger of serious physical injury.
The court therefore denied Taylor in forma pauperis status.
Taylor now appeals this decision and argues that only Talal v. McVey should count as a
§ 1915(g) strike. Taylor argues for the first time on appeal that Stewart v. Pully does not count as
a strike. Taylor also alleges that he was under imminent danger of serious physical injury, entitling
him to proceed in forma pauperis even if he had three strikes.2
2
Taylor also argues that he has stated a claim upon which relief may be granted. This issue
was not argued in the district court, and we therefore refrain from analyzing it.
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ANALYSIS
The Prisoner Litigation Reform Act (PLRA) governs civil rights actions brought by prisoners.
The PLRA grants prisoners in forma pauperis status under certain circumstances, unless 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 [was] frivolous, malicious, or fail[ed] to state a claim upon which
relief may be granted . . . .
28 U.S.C. § 1915(g). If the plaintiff has three prior cases meeting this standard—or, in other words,
if the plaintiff has “three strikes”—in forma pauperis status will be denied unless the plaintiff alleges
that he is under imminent danger of serious physical injury. Id.
We review the denial of in forma pauperis status for abuse of discretion. Pointer v.
Wilkinson, 502 F.3d 369, 372 (6th Cir. 2007). We employ de novo review, however, for questions
of law under the PLRA. McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997) overruled on
other grounds by Jones v. Bock, 549 U.S. 199 (2007). What constitutes a strike under § 1915(g) is
a question of law.3
3
No published decision of this circuit has held that de novo review is appropriate in the
circumstances presented by this case. An unpublished order, however, in this circuit supports de
novo review of what prior litigation constitutes a strike, Wilson v. Fifty Second Dist. Ct., 49 F. App’x
610 (6th Cir. 2002), as does published authority in other circuits. See Smith v. Veterans Admin., 636
F.3d 1306, 1309 (10th Cir. 2011); Tolbert v. Stevenson, 635 F.3d 646, 649 (4th Cir. 2011); Chavis
v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010); Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007);
Jackson v. Johnson, 475 F.3d 261, 265 (5th Cir. 2007); Andrews v. King, 398 F.3d 1113, 1118 (9th
Cir. 2005); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003); Dupree v. Palmer, 284 F.3d
1234, 1235 (11th Cir. 2002).
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A. Imminent Danger
Because it could obviate the need to determine whether Taylor has three or more strikes, we
first consider whether he falls within the exception to the three-strikes rule—the imminent-danger
exception. In Rittner v. Kinder, this court relied on precedent from the other circuits to define
“imminent danger.” 290 F. App’x 796, 797 (6th Cir. 2008). The court stated that “the threat or
prison condition must be real and proximate and the danger of serious physical injury must exist at
the time the complaint is filed.” Id. (internal quotation marks omitted) (citing Ciarpaglini, 352 F.3d
at 330; Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) (en banc)); see also Vandiver
v. Vasbinder, 416 F. App’x 560, 562 (6th Cir. 2011) (stating that the injury must be “presently
existing” when the plaintiff files the complaint). Allegations of past dangers are insufficient to
invoke the exception. Rittner, 290 F. App’x at 797-98. Allegations that are conclusory, ridiculous,
or clearly baseless are also insufficient for purposes of the imminent-danger exception. Id. at 798
(citing Ciarpaglini, 352 F.3d at 331; Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998)).
In addition, this court has previously held that the imminent-danger exception is a pleading
requirement subject to the ordinary principles of notice pleading. Vandiver, 416 F. App’x at 562
(citing Fed. R. Civ. P. 8(a)(2)). In Vandiver, the plaintiff suffered from hepatitis C and diabetes. Id.
at 561. The plaintiff alleged that he was not receiving proper treatment because he had spoken out
against prison officials. Id. He alleged in the facts of his complaint that he “is not receiving proper
treatment.” Id. The district court found that the plaintiff had failed to plead imminent danger, but
this court disagreed. The court liberally construed the plaintiff’s complaint because he was
proceeding pro se. Id. at 562 (citing Erickson v. Pardus, 551 U.S. 89, 94 (2004)). The court then
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held that the plaintiff pled imminent danger in his factual allegations by stating that he “is not
receiving proper treatment.” Id. at 562-63.
To establish entitlement to proceed in forma pauperis based on imminent danger, Taylor
must therefore show that his complaint alleged facts “from which a court, informed by its ‘judicial
experience and common sense,’ could ‘draw the reasonable inference’” that Taylor was under an
existing danger at the time he filed his complaint. Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir.
2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 679 (2009)). Taylor must bring forth more than
just “‘naked assertion[s] devoid of further enhancement.’” Id. (quoting Iqbal, 556 U.S. at 678
(internal quotation marks omitted) (alteration in original)).
Taylor has failed to do this. The only mention of an ongoing injury occurs on a page
discussing Taylor’s current place of confinement where Taylor stated that “[a]ll parties continue to
withhold my pain medication and disregarded all complaints.” R. 1, Pl. Compl., Page ID # 7. In the
factual section of Taylor’s complaint the alleged wrongful conduct occurred between Sept 4, 2009,
and October 26, 2009. All of the factual allegations focus on specific events between these dates.
Therefore, Taylor failed to plead facts supporting a finding of imminent danger on the date that he
filed his complaint, and he is barred from proceeding in forma pauperis based on the imminent-
danger exception. Accordingly, we proceed to the question of whether Taylor has three strikes.
B. Three Strikes
1. Talal v. McVey
The parties do not contest that Talal v. McVey constitutes a strike. Therefore, we need only
consider the other three cases.
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2. Stewart v. Pully
Taylor did not contest that Stewart v. Pully constituted a strike below; therefore, the argument
is not preserved for appeal. See Smith v. Detroit Fed. of Teachers Local 231, Am. Fed. Teachers,
AFL-CIO, 829 F.2d 1370, 1373 (6th Cir. 1987). “[O]nly those specific objections to the magistrate’s
report made to the district court will be preserved for appellate review; making some objections but
failing to raise others will not preserve all the objections a party may have.” Id. This rule
“‘preclud[es] appellate review of any issue not contained in objections [to the magistrate’s report].’”
Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986) (alteration in original) (quoting Thomas
v. Arn, 474 U.S. 140, 147-48 (1985)). Taylor failed to object to the magistrate’s finding that Stewart
counted as a strike. Therefore, the issue was not preserved for appeal and Stewart counts as a strike.
However, even if the argument had been preserved, Stewart would count as a strike.
In Stewart, Taylor joined with Stewart, a fellow prisoner, to bring claims against a number
of defendants. The claims against all but three defendants were dismissed as frivolous. Taylor and
Stewart then brought an amended complaint attempting to restore claims against four of the
dismissed defendants, adding one claim against an additional defendant, and attempting to refine
their prior claims. The amended complaint was accepted insofar as it refined prior claims, but all
new claims were dismissed as frivolous. All of Taylor’s remaining claims were dismissed for failure
to state a claim. Stewart’s claims against the original three defendants survived, and Taylor asserts
that the claims were ultimately settled and voluntarily dismissed.
Section 1915(g) addresses claims by a “prisoner” and not collective actions: “the prisoner
[who has] brought an action . . . that was dismissed on the grounds that it is frivolous, malicious, or
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fails to state a claim . . . .” The plain language therefore contemplates that strikes be assessed to an
individual prisoner applying for in forma pauperis status. Thus, actions should be determined and
strikes allocated on a prisoner-by-prisoner basis.
Additionally, a holding otherwise would undermine the purpose of the PLRA: it would allow
prisoners to join their cases in the hopes of finding one claim with merit among them, thereby
avoiding strikes. Cf. Pointer, 502 F.3d at 375 (discussing purposes underlying PLRA). Though
multiple plaintiffs may join together to form a single “action,” Fed. R. Civ. P. 20(a)(1), as the Third
Circuit recognized, joinder could be used as a way to avoid incurring strikes for frivolous actions.
See Hagan v. Rogers, 570 F.3d 146, 154-55 (3d Cir. 2009).4
Accordingly, § 1915(g) covers an entire action brought by a prisoner, not the entire case
brought jointly by prisoners. When multiple prisoners are joined under Rule 20, strikes may still be
incurred for an individual prisoner’s portion of the case if all of that prisoner’s claims are dismissed
for failure to state a claim, regardless of the outcome of the other litigants’ claims. In such a
situation, the action brought by the prisoner was dismissed, as described by § 1915(g).
Such is the case in Pully. Although Taylor’s claims were joined with Stewart, the entirety
of Taylor’s claims were dismissed for § 1915(g) reasons. Therefore, even if the argument had been
preserved Pully, would count as a strike under § 1915(g).
4
At least one circuit has determined that § 1915 removed prisoners’ ability to bring joint suits.
Hubbard v. Haley, 262 F.3d 1194, 1197-98 (11th Cir. 2001).
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3. Talal v. White
The district court’s order and the magistrate’s report and recommendation did not specify
whether White counted as a strike. However, if it counts as a strike, we may affirm the district court
on this basis. See Frazie v. McGinnis, No. 99-1164 1999 WL 1253054, at *2 (6th Cir. Dec. 16,
1999) (citing City Mgmt. Corp. v. U.S. Chem. Co., 43 F.3d 244, 251 (6th Cir. 1994)) (stating that a
court may affirm the district court’s judgment on any grounds supported by the record).
In White, Taylor brought constitutional claims under the First, Eighth, and Fourteenth
Amendments. Talal v. White, No. 09-5707, at 2 (6th Cir. July 14, 2010). The case went to a jury,
which returned verdicts for the defendants. Id. at 3. Taylor then moved for a new trial on the basis
of withheld evidence and perjury, and moved for a transcript at government expense. Id. at 4 (citing
28 U.S.C. § 753(f), which allows a district court to grant a plaintiff’s motion for a transcript at
government expense by certifying that the appeal is “not frivolous (but presents a substantial
question)”). After finding that the appeal did not present a substantial question, the district court
denied the motion for a transcript at government expense. Id. The district court also denied the
motion for a new trial. Id. On appeal this court held that the appeal did not present a substantial
question and therefore denied the motion for a transcript at government expense. Id. The court then
affirmed the district court’s denial of the motion for a new trial. Id. The court held that Taylor’s
claims were unsubstantiated without a transcript, but did not rule out the possibility that Taylor could
have prevailed on his appeal had he obtained the transcript and had it contained evidence of perjury.
Id.
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Section 1915(g) includes by its own language those appeals that were dismissed as frivolous,
malicious, or for failure to state a claim upon which relief may be granted. The plain language
seemingly limits the application of a strike to dismissals by only speaking of dismissals. 28 U.S.C.
§ 1915(g). Additionally, if an appeal were frivolous, the court would be required under 28 U.S.C.
§ 1915(e)(2)(B) to dismiss it. The other circuits presented with the question of whether an
affirmance can count as a strike have held that a court should not impose a § 1915(g) strike for an
appeal when the original appellate court declined to implicate § 1915(g) reasons. See Thompson
v. Drug Enforcement Admin., 492 F.3d 428, 436-37 (D.C. Cir. 2007); Ali v. Howard, 353 F. App’x
667, 668 (3d Cir. 2009); Owens, 487 F.3d at 563; Michaud v. City of Rochester, No. 00-1263, 2000
WL 1886289, at *1 n.1 (1st Cir. Dec. 27, 2000); Jennings v. Natrona Cnty. Det. Ctr. Med. Facility,
175 F.3d 775, 780 (10th Cir. 1999); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
The language of the opinion does not indicate that the court found the appeal to be frivolous.
Because the court did not dismiss the case under § 1915(g), White does not count as a strike.5 We
move to the final case considered by the district court, Talal v. Myers.
4. Talal v. Myers
The district court determined that Talal v. Myers constituted a strike under § 1915(g). In that
case, Taylor sued nine defendants. By agreed order, Taylor voluntarily dismissed claims against four
5
There may be a narrow set of cases where it is inappropriate to apply a strict-textualist
approach, such as where a court finds an action frivolous but then erroneously styles its dismissal
as an affirmance. The D.C. Circuit contemplated such a scenario and referred to it as a constructive
dismissal. Thompson, 492 F.3d at 436. Talal v. White does not present such a circumstance, and
therefore, we refrain from analyzing whether this court should adopt the reasoning from Thompson.
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defendants with prejudice. After Taylor voluntarily dismissed these claims, the district court
dismissed the remaining claims against three defendants for failure to state a claim and against two
defendants under Federal Rule of Civil Procedure 4(m) when these two defendants were not timely
served.
Taylor alleged below, and alleges now, that he voluntarily dismissed claims in Myers because
he obtained a settlement from the four dismissed defendants. The district court found that “the
Court’s review of [Myers] show[ed] that . . . some of [the] claims [settled].” R. 103, Dist. Ct. Order
at 2, Page ID # 330. Despite finding that a settlement occurred, the court held that Myers counted
as a strike because “the vast majority of his claims were dismissed for failure to state a claim.”6 Id.
Based on this record, Taylor contends that Myers should not count as a strike under § 1915(g)
because (1) the case was dismissed in part for non-§ 1915(g) reasons and (2) the settlement of claims
prevents this court from holding that Myers was a strike under § 1915(g). However, if the district
judge correctly concluded that an action can count as a strike because some of the claims were
dismissed for § 1915(g) reasons, then we would not need to consider Taylor’s arguments. Also, if
there were no evidence of a settlement, the district court should have considered what effect a
voluntary dismissal would have under § 1915(g). Before delving into the specifics of this case,
however, we begin by delineating the relevant areas of the law—the definition of action and the
effect of mixed dismissals, settlements, and voluntary dismissals under § 1915(g).
6
Considering that nine claims were brought, the district court erroneously concluded that the
“vast majority” of claims were dismissed for § 1915(g) reasons.
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a. Principles of Law
i. Action Under § 1915(g)
Section 1915(g) speaks of appeals and actions, but not claims. Action, as it is normally used
within the pleading context, refers to the entire case or suit filed by a plaintiff. See Tolbert, 635 F.3d
at 650-51. Thus, a plain reading of the statute would suggest that action refers to an entire action and
not individual claims. The other circuits to address the issue agree with this conclusion. See, e.g.,
id. (holding entire action must be dismissed for § 1915(g) reasons); Turley v. Gaetz, 625 F.3d 1005,
1008 (7th Cir. 2010) (same); Thompson, 492 F.3d at 432 (same); Banks v. U.S. Marshal, 274 F.
App’x 631, 635 n.2 (8th Cir. 2008) (holding that entire action must be dismissed at least in part for
§ 1915(g) reasons).
Additionally, reading “action” to mean “claim” would undermine the purposes of the PLRA.
This interpretation would deny in forma pauperis status to a prisoner who previously brought three
actions, each of which contained a frivolous claim amidst several meritorious ones. Denying in
forma pauperis status to a plaintiff with such a prior litigation history would undermine the purposes
of the PLRA because the denial would not staunch the flow of frivolous litigation. Even if an action
only has one meritorious claim amidst a sea of frivolous ones, the case cannot count as a § 1915(g)
strike. As this and other courts have contemplated, if any of the claims have merit, then the case
cannot count as a strike. Pointer, 502 F.3d at 375-76 (dicta); Thomas v. Parker, 672 F.3d 1182,
1183-84 (10th Cir. 2012) (dicta); Thompson, 492 F.3d at 432. The reason is simple: In these cases,
the plaintiff has proved that the entirety of his action does not fall within § 1915(g).
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ii. Mixed Dismissals
With the definition of “action” in mind, we turn to how district courts should interpret mixed
dismissals under §1915(g). We begin with the most relevant Sixth Circuit case. In Pointer, the court
held that a mixed dismissal counts as a strike where some claims are dismissed for reasons
enumerated in § 1915(g) and others are dismissed without prejudice for failure to exhaust
administrative remedies. 502 F.3d at 373. The court noted that failing to count an action as a strike
because the plaintiff did not exhaust his administrative remedies with respect to some claims would
subvert the purpose of the PLRA by allowing unexhausted claims to “inject merit into the action”
where all other claims fail. Id. (internal quotation marks omitted). The court noted that the rule
advanced by the plaintiff would allow prisoners to avoid obtaining a strike by merely appending one
unexhausted claim. Id. The Pointer court therefore held that if an entire action was dismissed, at
least in part for § 1915(g) reasons, and if none of the claims were found to have merit, then the action
counts as a strike under § 1915(g).7 See id. When the claims dismissed for non-§ 1915(g) reasons
are dismissed without prejudice, the action counts as a strike unless the plaintiff proves the claims
had merit by refiling any of them and proving that they do not fall within the gamut of § 1915(g).
See id. at 376.
7
Taylor contends that Pointer only extends to unexhausted claims; however, this reading is
too narrow. The Pointer court did not focus on the unexhausted nature of the claims; rather, the
court focused on the underlying purposes of the PLRA, the fact that none of the claims were found
to have merit, and the fact that the entire action was dismissed. Id. at 373-74. Limiting the Pointer
holding to unexhausted claims would contradict the reasoning and holding of that case.
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Implicit in the Pointer holding is that the plaintiff bears the burden of proving that a prior
action did not fall within § 1915(g).8 When a prisoner’s suit is dismissed partially under § 1915(g)
and partially for other reasons, the claims dismissed for non-§ 1915(g) reasons might later have been
dismissed as frivolous, malicious, or for failure to state a claim. And a prisoner should not be given
the benefit of the doubt in these circumstances. Instead, when an action is dismissed in its entirety
at least in part for § 1915(g) reasons, the plaintiff subsequently bears the burden of proving that the
entire action did not fall under § 1915(g) by showing that claims dismissed without prejudice were
not frivolous, malicious, or failed to state a claim. Absent a plaintiff later proving this, the action
counts as a strike.
iii. Settlement
We must also consider what effect a settlement would have on a three-strikes determination.
To be sure, a settlement creates the possibility that a claim did not fall within § 1915(g). However,
the mere fact of a settlement does not mean that the claim had merit or that it would have withstood
scrutiny. Simply put, courts should not assume that a case has merit because it settled. Cases settle
for many reasons and sometimes for reasons entirely unrelated to the merits of the case, and the mere
fact of a settlement will not support a finding that the previous case would have withstood dismissal
under § 1915(g). The plaintiff bears the burden of persuading the court that a case is not a strike,
8
When, as in this case, a magistrate judge recommends that the plaintiff has three or more
strikes, the plaintiff bears the burden of persuading the district court that the identified cases are not
strikes. See Thompson 492 F.3d at 436; Andrews, 398 F.3d at 1120; Evans v. Ill. Dep’t of Corr., 150
F.3d 810, 811-12 (7th Cir.1998).
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and therefore, he must prove that the claim would not have later been dismissed under § 1915(g).
A failure on plaintiff’s part to prove this would result in the action counting as a strike.
iv. Voluntary Dismissal
Finally, we also consider what effect a voluntary dismissal will have for purposes of
§ 1915(g). A plaintiff cannot avoid incurring a strike by simply voluntarily dismissing a claim. This
rule would subvert the purposes of the PLRA: a plaintiff could guard against incurring strikes by
filing an action with a bogus claim and then voluntarily dismissing that claim, thereby allowing
inmates to easily avoid strikes even if all of their claims were meritless. And we will not assume that
a voluntary dismissal with prejudice means that a case had merit.9
b. Application
We must now apply these abstract principles to the facts of this case. We hold initially that
the district court erred in concluding that an action counts as a strike because some of the claims
were dismissed under § 1915(g). Because § 1915(g) refers to an entire action and not individual
claims, a court cannot impose a strike simply because some of the “claims were dismissed for failure
to state a claim”; instead, the district court should have considered whether the alleged settlement
9
Taylor argues that we should adopt the reasoning from the Fourth Circuit’s Tolbert decision.
The Tolbert court imposed a categorical rule that if a plaintiff voluntarily dismisses a claim without
prejudice then the action cannot count as a strike. 635 F.3d at 648, 654. The court held that because
the plain meaning of § 1915(g) speaks of actions and not claims, the entire action had to be
dismissed for reasons enumerated in § 1915(g) to be counted as a strike. Id. at 650-52
The underlying purposes of the PLRA and the analysis of Pointer prevent us from adopting
the categorical approach endorsed in Tolbert.
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occurred because the claim had merit. Because the district court’s reasons for imposing the strike
were erroneous, we must turn to Taylor’s arguments.
The holding from Pointer dictates that Taylor’s first argument—because Myers was a mixed
dismissal it should not count as a strike—fails. Myers was dismissed in its entirety, some claims
were dismissed for § 1915(g) reasons, and Taylor never proved the claims dismissed without
prejudice had merit; therefore, were this Taylor’s only argument, the action would count as a strike.
Taylor could have proved the case had merit by refiling the claims dismissed for failure to timely
serve, properly serving the parties, and establishing that his claim did not fall within § 1915(g).
Turning to Taylor’s second argument—that a settlement of some claims in Myers establishes
that it cannot count as a strike. Having concluded above that the district court erred when it imposed
a strike because some claims were dismissed under § 1915(g), we assess the district court’s finding
that “the Court’s review of [Myers] show[ed] that . . . some of [the] claims [settled].” R. 103, Dist.
Ct. Order at 2, Page ID # 330.
The district judge did not cite to the portion of the record he relied upon when finding that
a settlement occurred. Indeed, our review of the entire record from Myers does not support the
district court’s finding that a settlement occurred. The only support for the existence of a settlement
is Taylor’s statement in his memorandum in opposition to the magistrate’s report and
recommendation. In his objections, Taylor stated that the claims had settled for $500. However, an
argument presented to the court is not evidence. Cf. Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th
Cir. 2006) (stating that “[a]rguments in parties’ briefs are not evidence”). A statement in a memo
will not suffice to show that a claim settled, and the record on appeal is void of any other evidence
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of a settlement. Based on this record, it appears likely that the district judge abused his discretion
in concluding there was a settlement.
If we are correct and there was no evidence presented of a settlement, but rather, there is only
evidence of a voluntary dismissal with prejudice, then Myers would count as a strike as outlined
above.
However, though we found no evidence in the record of a settlement, there is the possibility
that the district judge was presented with evidence of a settlement and simply failed to discuss that
evidence. If this is the case, Taylor should not be penalized. We must remand this case to give the
district judge an opportunity to explain what basis he had for determining that there was a settlement.
Accordingly, on remand the district court must consider whether evidence of a settlement on
the merits was presented. If the court finds that there was a settlement on the merits, then Myers
does not count as a strike. Myers counts as a strike, on the other hand, if the court finds that there
was not a settlement on the merits.
CONCLUSION
For the foregoing reasons, we REVERSE the opinion of the district court and REMAND
for further proceedings not inconsistent with this opinion.
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