Lee Charles Millsap v. Jefferson Cty. ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1235
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Lee Charles Millsap, Jr., *
also known as Solomon Lee, *
*
Appellant, *
*
v. *
*
Jefferson County; Lincoln County, *
Arkansas; Ray Hobbs, Chief Deputy *
Director, Jefferson and Lincoln County *
Department of Correction; Larry May, *
Deputy Director, Jefferson and Lincoln *
County Department of Correction; *
Tiffanye Compton, Secretary, * Appeal from the United States
Arkansas Department of Correction; * District Court for the Eastern
Rick L. Toney, Warden, Varner Super * District of Arkansas.
Max, ADC; James Banks, Assistant * [UNPUBLISHED]
Warden, Varner Super Max, ADC; *
Randall Manus, Assistant Warden, *
Varner Super Max, ADC; Jim W. Via, *
Captain, Varner Super Max, ADC; *
T. Brown, Administrative Review *
Officer, Varner Super Max, ADC; *
J. Co-II, Varner Super Max, ADC; *
S. Jordan, Security Officer, Varner *
Super Max, ADC; B. Smallwood, *
Mail Room Supervisor, Varner *
Super Max, ADC; S. Brasfield, *
Mail Room Supervisor, Varner *
Super Max, ADC, *
*
Appellees. *
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Submitted: July 24, 2003
Filed: December 23, 2003
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Before LOKEN, Chief Judge, BYE, and MELLOY, Circuit Judges.
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PER CURIAM.
Arkansas inmate Lee Charles Millsap, Jr., appeals the district court's order
denying his in forma pauperis (IFP) application after determining Millsap had three
or more "strikes" under 28 U.S.C. § 1915(g) (i.e., previous actions dismissed on the
grounds they were frivolous, malicious, or failed to state a claim upon which relief
may be granted), and dismissing his civil rights complaint for his failure to prepay the
filing fee. Millsap argues some of his previous actions were dismissed without
prejudice merely for lack of administrative exhaustion, and should not count as
"strikes" under section 1915(g).
We agree in part, and make this distinction. In one case, an inmate may allege
exhaustion in the complaint but still face dismissal because the procedural history of
the case reveals an actual failure to exhaust administrative remedies. In another case,
an inmate's complaint may be dismissed for simply failing to allege exhaustion in the
complaint. We believe the former should not count as a strike under section 1915(g),
but the latter should because the complaint fails to state a claim upon which relief can
be granted. See Porter v. Fox, 99 F.3d 271, 274 (8th Cir. 1996) (holding plaintiff who
did not allege exhaustion of administrative remedies failed to state a claim).
The record before us indicates Millsap had two previous actions dismissed for
failure to exhaust. But we cannot tell whether those complaints were dismissed
because Millsap failed to allege exhaustion, or whether one or both complaints were
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dismissed for an actual failure to exhaust notwithstanding an allegation of exhaustion.
We therefore remand for additional proceedings consistent with this opinion.
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