In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3847

GREGORY J. TURLEY,

Plaintiff-Appellant,

v.

DONALD GAETZ, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 3:09-cv-00829-GPM—G. Patrick Murphy, Judge.

ARGUED MAY 26, 2010—DECIDED NOVEMBER 2, 2010

Before RIPPLE, KANNE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. Gregory Turley, an Illinois

prisoner, filed a pro se lawsuit under 42 U.S.C. § 1983,

claiming that the warden, a number of guards and other

employees at Menard Correctional Center (“Menard”)

retaliated against him for litigation previously filed

regarding his conditions of confinement. Mr. Turley

moved to proceed in forma pauperis (“IFP”), but the

district court concluded that he was ineligible due to the
2 No. 09-3847

This opinion has been circulated among all judges of this 1

court in regular active service pursuant to Circuit Rule 40(e).

No judge favored to hear this case en banc. 

Judge Flaum took no part in the consideration or decision of

this case.

“three-strikes” rule of the Prison Litigation Reform Act of

1995 (“PLRA”), see 28 U.S.C. § 1915(g). Relying on our

opinions in George v. Smith, 507 F.3d 605, 607-08 (7th Cir.

2007), and Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir.

2004), the district court reasoned that Mr. Turley had

“struck out” because in each of his three prior lawsuits

at least one claim had been dismissed for failure to state

a claim although other claims had been permitted to

go forward. The court also concluded that Mr. Turley

was not in imminent danger of serious physical harm

and, therefore, did not meet the one exception to the

three-strikes rule. The court therefore dismissed the

complaint but without prejudice so that Mr. Turley

could refile upon prepayment of the full filing

fee. Mr. Turley appeals. For the reasons set forth in

this opinion, we reverse the judgment of the district

court and remand with instructions to reconsider

Mr. Turley’s application to proceed IFP.1

I

BACKGROUND

In his complaint, filed in October 2009, Mr. Turley

contends that the defendants have worked together to
No. 09-3847 3

Another district court judge of the same district had dismissed

2

Mr. Turley’s other complaints on August 14, 2008. Mr. Turley’s

appeals of those dismissals currently are pending in this

court. Turley v. Hulick, No. 08-3233 (7th Cir. filed Sept. 2, 2008);

Turley v. Hulick, No. 08-3232 (7th Cir. filed Sept. 2, 2008).

punish him for filing grievances and lawsuits about the

conditions of his confinement at Menard. He alleges

that he has endured a range of retaliatory actions including physical assaults, threats, trumped-up disciplinary

charges, confinement in segregation without a valid

reason, interference with his access to the grievance

system and removal of his personal property. Mr. Turley

also filed an application to proceed IFP. Section 1915(g)

of Title 28 prohibits a prisoner from proceeding IFP if,

on three or more occasions during his imprisonment, he

has “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.” 28 U.S.C. § 1915(g). The

sole statutory exception to this three-strikes limitation

on IFP status is if “the prisoner is under imminent

danger of serious physical injury.” Id. In his IFP application, Mr. Turley disclosed that a different district judge

already had dismissed two other civil actions on the

basis of § 1915(g) after concluding that he had incurred

strikes for three earlier lawsuits. Mr. Turley argued, 2

however, that those earlier suits should not be considered “strikes” because each action included some

claims that proceeded to a decision on the merits, along

with some claims that had been dismissed at screening.
4 No. 09-3847

See 28 U.S.C. § 1915A. Mr. Turley also contended that

he was “under imminent danger of serious physical

injury.” 28 U.S.C. § 1915(g). In particular, he alleged that

one of the defendant prison employees had threatened

him.

A review of Mr. Turley’s litigation history reveals

three relevant civil rights cases filed during his incarceration. In the first action, Turley v. Cowan, No. 01-cv-188-

MJR (S.D. Ill. Mar. 13, 2007), the district court dismissed

one of Mr. Turley’s claims at screening for failure to

state a claim but permitted two other claims for retaliation by prison officials to proceed to a jury trial. The

parties ultimately settled the case following a jury

verdict in Mr. Turley’s favor. Cowan, No. 01-cv-188-MJR

(Docket Nos. 7, 39, 141, 151).

In the second action, Turley v. Smith, No. 02-cv-4592

(N.D. Ill. July 27, 2005), Mr. Turley claimed that prison

administrators and medical personnel had been deliberately indifferent to his medical needs. At screening

the district court concluded that Mr. Turley had failed to

state a claim against some defendants, specifically

those who relied on the authority of medical staff in

denying his grievances. Smith, No. 02-cv-4592 (Docket

No. 6). The court later granted summary judgment for

the medical staff defendants on the ground that

Mr. Turley lacked evidence of deliberate indifference.

Smith, No. 02-cv-4592 (Docket No. 97).

Mr. Turley’s third action, Turley v. Catchings, No. 03-cv8491 (N.D. Ill. Oct. 26, 2006), included multiple allegations against prison officials, including a retaliation
No. 09-3847 5

Ordinarily, a dismissal without prejudice is not a final, 3

appealable order. See Taylor-Holmes v. Office of Cook Cnty. Pub.

Guardian, 503 F.3d 607, 609-10 (7th Cir. 2007). The denial of a

motion to proceed IFP, however, is an exception to this rule

and an appealable order. Roberts v. United States Dist. Court for

N. Dist. of Cal., 339 U.S. 844, 845 (1950); Walker v. O’Brien,

216 F.3d 626, 634-37 (7th Cir. 2000); Newlin v. Helman, 123

F.3d 429, 436 (7th Cir. 1997) (“[A] prisoner may file an appeal

to contest the district court’s conclusion that he is ineligible

to proceed in forma pauperis.”), overruled in part on other grounds

by Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000).

claim and a claim that he was placed in investigative

segregation without due process. The district court concluded that Mr. Turley’s complaint failed to state a

claim for a due process violation and also dismissed

from the case a number of defendants whom Mr. Turley

had sued only in their supervisory capacity. Catchings,

No. 03-cv-8491 (Docket No. 7). The court allowed the

retaliation claim to proceed against four defendants, id.,

and later granted those defendants’ motion for summary judgment after concluding that Mr. Turley had

failed to exhaust his administrative remedies as required

under 42 U.S.C. § 1997e(a), Catchings, No. 03-cv-8491

(Docket No. 128).

Based on this litigation history, the district court in the

current litigation denied Mr. Turley’s motion for leave

to proceed IFP and dismissed the complaint without

prejudice, thus permitting refiling after prepayment of the

full filing fee. Citing George v. Smith, 507 F.3d at 607-08, 3

and Boriboune v. Berge, 391 F.3d at 855, the district court
6 No. 09-3847

concluded that Mr. Turley had accumulated three

strikes because in each of his prior lawsuits at least one

claim had been dismissed for failure to state a claim.

The district court rejected Mr. Turley’s contrary reading

of § 1915(g): that a dismissal incurs a strike only if the

entire action is dismissed as frivolous, malicious or

for failure to state a claim. The court opined that

Mr. Turley’s interpretation of the statute was foreclosed

by George and commented that “[w]hether George is a

correct interpretation of § 1915(g) is not a decision for

this court to make.” R.9 at 3. The district court also

rejected Mr. Turley’s contention that he was under imminent danger of serious physical injury. This appeal

followed. 

II

DISCUSSION

At issue in this case is the interpretation of the threestrikes rule under the PLRA, see 28 U.S.C. § 1915(g).

Specifically, we consider whether the dismissal of certain

claims in an action on grounds that they are frivolous,

malicious or fail to state a claim results in a strike,

for purposes of § 1915(g), despite the fact that other

related claims in the same action proceed to adjudication on the merits. The district court concluded these

prior split cases did result in a strike. Mr. Turley contends that the court’s application of the three-strikes

limitation on a claim-by-claim basis is contrary to the

plain language of the statute. He further challenges the

district court’s finding that he was not in imminent
No. 09-3847 7

danger. See 28 U.S.C. § 1915(g); Ciarpaglini v. Saini, 352

F.3d 328, 330-31 (7th Cir. 2003). We review de novo a

district court’s application of the PLRA’s three-strikes

limitation. Ciarpaglini, 352 F.3d at 330; Evans v. Ill. Dep’t of

Corr., 150 F.3d 810, 811 (7th Cir. 1998).

“Statutory construction must begin with the language

employed by Congress and the assumption that the

ordinary meaning of that language accurately expresses

the legislative purpose.” Park ‘N Fly, Inc. v. Dollar Park &

Fly, Inc., 469 U.S. 189, 194 (1985); see also Ortega v. Holder,

592 F.3d 738, 743 (7th Cir. 2010); United States v. Olofson,

563 F.3d 652, 658 (7th Cir. 2009). Turning to that language,

§ 1915(g) prohibits a prisoner from proceeding IFP if he

has a history of frivolous litigation:

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) (emphasis added). Section 1915(g)

literally speaks in terms of prior actions that were dismissed as frivolous, malicious or for failure to state a

claim. The statute does not employ the term “claim” to

describe the type of dismissal that will incur a strike.

“Action” and “claim” have well-defined meanings in the
8 No. 09-3847

pleading context. See Fed. R. Civ. P. 3 (providing that a

civil “action” begins with the filing of a complaint); Fed.

R. Civ. P. 8(a) (setting out the minimal requirements to

state a “claim” for relief); Fed. R. Civ. P. 18(a) (providing

that a party may join multiple “claims” against a single

defendant). Here we believe that the obvious reading of

the statute is that a strike is incurred for an action dismissed in its entirety on one or more of the three enumerated grounds. See 28 U.S.C. § 1915(g).

Our sister circuits already have adopted this reading

of § 1915(g). In Thompson v. Drug Enforcement Administration, 492 F.3d 428, 432 (D.C. Cir. 2007), the D.C. Circuit

held that the plain language of § 1915(g) provides that a

plaintiff incurs a strike only when the entire action is

dismissed based on one of the listed bases. The court

reasoned that “it would make no sense to say—where

one claim within an action is dismissed for failing to state

a claim and another succeeds on the merits—that the

‘action’ had been dismissed for failing to state a claim.” Id.

Accordingly, the court in Thompson held that “actions

containing at least one claim falling within none of the

three strike categories” do not count as strikes. Id.

In Pointer v. Wilkinson, 502 F.3d 369, 372-73 (6th Cir.

2007), the Sixth Circuit held that a complaint dismissed

in part for failure to exhaust and in part on one of the

grounds enumerated in § 1915(g) counts as a strike.

However, it recognized that “if some claims were dismissed without prejudice for failure to exhaust and

other claims ‘were found to have merit,’ then the dismissal of other frivolous claims would not render the
No. 09-3847 9

dismissal a strike.” Pointer, 502 F.3d at 372, 376-77 (quoting

Clemons v. Young, 240 F. Supp. 2d 639, 641 (E.D. Mich.

2003)). Similarly, both the Fifth and Eighth Circuits have

recognized that overturning a dismissal in part and

reinstating some but not all of a plaintiff’s claims eliminates any strike originally thought to apply to the case.

See Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d

599, 617 (5th Cir. 2008); Powells v. Minnehaha Cnty. Sheriff

Dep’t, 198 F.3d 711, 713 (8th Cir. 1999) (citing Moore v.

Doan, No. 98-cv-2307, 1998 WL 887089, at *5 (N.D. Ill.

Dec. 10, 1998)). In another context, the Ninth Circuit

concluded that a case is “dismissed” under § 1915(g) when

the district court “disposes of an in forma pauperis complaint” on one of the three statutory grounds. O’Neal v.

Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (emphasis added).

Counting as a strike only the dismissal of an entire

action is consistent with the Supreme Court’s interpretation of 42 U.S.C. § 1997e(a), a different provision of the

PLRA which provides that “[n]o action” challenging

prison conditions shall be brought by an inmate until

administrative remedies have been exhausted. In Jones v.

Bock, 549 U.S. 199 (2007), the Court recognized that the

PLRA was intended “to filter out the bad claims and

facilitate consideration of the good.” Jones, 549 U.S. at 203-

04. The language of § 1997e(a), the Court held, authorizes

a district court to dismiss a prisoner’s lawsuit in its

entirety only if the complaint is devoid of unexhausted

claims. Id. at 220-21. If a complaint presents both exhausted and unexhausted claims, the Court concluded,

only the unexhausted claims may be dismissed. Id. at

221. As the Court explained, “statutory references to an
10 No. 09-3847

‘action’ have not typically been read to mean that every

claim included in the action must meet the pertinent

requirement before the ‘action’ may proceed.” Id.

In Jones, the Supreme Court also endorsed our interpretation of yet another provision of the PLRA, 42 U.S.C.

§ 1997e(e), which provides that “[n]o Federal civil

action may be brought by a prisoner . . . for mental or

emotional injury suffered while in custody without a

prior showing of physical injury.” See Jones, 549 U.S. at 221

(citing Robinson v. Page, 170 F.3d 747, 748-49 (7th Cir.

1999)). In Robinson, we were faced with the question

whether a mixed “action,” meaning a complaint containing a claim barred under § 1997e(e) along with other

permissible claims, must be dismissed in its entirety

or whether only the unauthorized claim should be dismissed. Robinson, 170 F.3d at 748-49. We concluded

that “the natural reading of the statute” required dismissal of only the unauthorized claim. Id. at 748. We

explained that to dismiss an entire suit

because it had one bad claim would be not only

gratuitous, but also contrary to the fundamental

procedural norm that when a complaint has

both good and bad claims, in the sense of claims

that can and claims that cannot survive a motion

to dismiss under Fed. R. Civ. P. 12(b)(6), only

the bad claims are dismissed; the complaint as a

whole is not.

Id. at 748-49; see also Freeman v. Watkins, 479 F.3d 1257,

1259-60 (10th Cir. 2007) (interpreting requirements

for dismissal of claims for lack of exhaustion under
No. 09-3847 11

§ 1997e(c)(1)); Lira v. Herrera, 427 F.3d 1164, 1172-73

(9th Cir. 2005) (same).

Given the plain language of § 1915(g) and the

Supreme Court’s understanding of how “action” is used

elsewhere in the PLRA, this case would be straightforward if not for our opinions in George and Boriboune.

The district court read these decisions to hold that a

dismissal of even one claim on a ground enumerated

in § 1915(g)—even when other claims survive—is enough

to qualify the entire lawsuit as a strike. Mr. Turley contends that the district court’s reading is too broad and

that these opinions stand only for the limited proposition that prisoners cannot abuse the rules of joinder

to insulate their complaints from the three-strikes limitation. To the extent that George and Boriboune hold that

the dismissal of a single claim among several is enough

to incur a strike, Mr. Turley asks that the two decisions

be overruled as contrary to the plain language of § 1915(g).

We agree with Mr. Turley that George and Boriboune do

not control here and do not compel a claim-by-claim

analysis of inmate complaints for purposes of applying

§ 1915(g). George and Boriboune specifically address the

application of the PLRA to lawsuits in which several

inmates have joined their individual claims in a single

complaint or in which one inmate has joined multiple

claims against several defendants. Neither decision,

however, speaks directly to the question presented by

this case. In Boriboune, four prisoners jointly filed a

single lawsuit and sought IFP status. 391 F.3d at 853. The

district court had announced that it would not allow
12 No. 09-3847

inmates jointly to proceed IFP and dismissed the complaint. Id. We reversed. We held that the PLRA did not

supersede Federal Rule of Civil Procedure 20(a)(1),

which allows multiple plaintiffs to join claims arising

out of the same series of occurrences and sharing a question of law or fact common to all plaintiffs. Id. at 854.

Noting, however, the “substantial” risk that “[j]oint

litigation could undermine the system of financial incentives created by the PLRA,” we also held that the

PLRA did modify the normal rule that the filing of a

lawsuit incurs just one filing fee no matter the number

of plaintiffs. Id. at 854-56. Thus, prisoners seeking to

proceed IFP on a jointly filed complaint must pay one

fee apiece. Id. at 856. In analyzing those questions we

emphasized that prisoners should be aware of the

shared risks of joint litigation and explained that a

prisoner litigating jointly under Rule 20 takes the risk

that one or more of the claims in the complaint may be

deemed sanctionable or count as a strike “whether or not

they concern him personally.” Id. at 855. We opined on

the risk that a strike may be incurred in the context of

joint litigation:

[Section] 1915(g) limits to three the number of IFP

complaints or appeals that were “dismissed on the

grounds that it is frivolous, malicious, or fails to

state a claim upon which relief may be granted[.”]

This language refers to the complaint or appeal as

a whole; thus when any claim in a complaint or

appeal is “frivolous, malicious, or fails to state a

claim upon which relief may be granted[,”] all

plaintiffs incur strikes.
No. 09-3847 13

Id. (emphasis added). This language, however, is dictum

and was not central to our holding that the rules of

joinder apply equally to prisoner suits.

Nearly three years later, however, in George, we characterized Boriboune’s discussion of § 1915(g) as carrying

greater weight. George addressed the reverse situation

of that in Boriboune: a complaint by a single inmate

joining 50 disparate claims against 24 defendants. 507

F.3d at 607. This joinder, we explained, not only violated the limitation on joinder of unrelated claims under

Federal Rules of Civil Procedure 18 and 20, but also

allowed the plaintiff to dodge paying multiple filing

fees and risking multiple strikes for what should have

been several different lawsuits. Id. The plaintiff in George

had filed a “buckshot complaint” in the hope that “if even

1 of his 50 claims were deemed non-frivolous, he would

receive no ‘strikes’ at all, as opposed to the 49 that

would result from making 49 frivolous claims in a batch

of 50 suits.” Id. “The district judge had likewise

assumed that a single non-frivolous claim in a blunderbuss complaint makes the suit as a whole non-frivolous.”

Id. We explained that a prisoner’s complaint that fails

to satisfy Rule 20 should be rejected just as a free

person’s complaint would, and, here, the plaintiff had

made no effort to show how his joinder of claims

satisfied Rule 20. Id. We did not insist, however, that

every such complaint must be dismissed. Instead, for

claims that violate Rule 20 but are permitted to go

forward, we offered this comment about § 1915(g):

When a prisoner does file a multi-claim,

multi-defendant suit, the district court should
14 No. 09-3847

evaluate each claim for the purpose of § 1915(g).

Boriboune observed: “when any claim in a complaint or appeal is ‘frivolous, malicious, or fails

to state a claim upon which relief may be

granted[,’] all plaintiffs incur strikes” (391 F.3d

at 855; emphasis added). 

Id. at 607-08. It followed, we continued, that the plaintiff

in George had incurred “two strikes in this litigation—

one for filing a complaint containing a frivolous claim,

another for an appeal raising at least one frivolous objection to the district court’s ruling.” Id. at 608. We concluded by holding that the district court had correctly

granted summary judgment for the defendants on

the plaintiff’s First and Eighth Amendment claims. Id.

at 608-09.

As the district court read these two opinions, George

in particular, the inclusion of a frivolous claim within

an action incurs a strike, even if the remainder of the

action is not frivolous. We believe the district court overestimated the significance of the language in George

and Boriboune. We do not ascribe to the earlier

panels an intent to substitute “claim” where Congress

has written “action” into § 1915(g). Those opinions do

not purport to interpret § 1915(g) as part of its narrow

holding. In Boriboune, we held that prisoners may join

their claims in a single action but must each pay a

separate filing fee. In George, we held that the district

court correctly granted summary judgment for the defendants. Each decision discusses § 1915(g) and the PLRA

only within the context of the rules of joinder and ex-
No. 09-3847 15

See Mitchell v. Fed. Bureau of Prisons, 587 F.3d 415, 418 (D.C. 4

Cir. 2009) (citing Thompson v. Drug Enforcement Admin., 492

F.3d 428, 432 (D.C. Cir. 2007)); Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d 599, 617 (5th Cir. 2008); Pointer v. Wilkinson,

502 F.3d 369, 372, 376-77 (6th Cir. 2007); Powells v. Minnehaha

Cnty. Sheriff Dep’t, 198 F.3d 711, 713 (8th Cir. 1999).

plains how district courts should handle prisoners’ complaints that could or should have been filed as separate

actions. See George, 507 F.3d at 607; Boriboune, 391 F.3d

at 855. The references to § 1915(g), therefore, are not

essential to the outcome in either case.

The district court’s extension of the language in George

to mean that in all cases a prisoner incurs a strike if

just one claim out of several is dismissed on one of the

enumerated grounds runs counter to the plain language

of the statute, which assigns a strike for the dismissal of

an “action” and not a “claim.” We previously have described § 1915(g) as restricting an inmate’s eligibility for

IFP status “[a]fter losing three cases for one of the enumerated grounds,” Abdul-Wadood v. Nathan, 91 F.3d 1023,

1024 (7th Cir. 1996) (emphasis added), and adopting a

contrary reading here would leave us in a minority of

one on the issue. Our sister circuits that have addressed

this issue all ascribe to the language of § 1915(g) its

literal and ordinary meaning: Strikes are incurred when

an action is dismissed, not when one of several claims

is dismissed. As we have noted, the Fifth, Sixth, Eighth

and D.C. Circuits all interpret § 1915(g) to count

strikes at the case level rather than claim-by-claim. By 4

contrast, we have found little support for a claim-by-
16 No. 09-3847

See Pointer, 502 F.3d at 372, 376-77 (issued before George); 5

Thompson, 492 F.3d at 432 (same); Powells, 198 F.3d at 713

(issued before Boriboune).

claim application of § 1915(g). The Third Circuit has

adopted the reasoning of Boriboune to permit joinder of

multiple IFP plaintiffs and, in dicta, agreed that “a court

could hold that, reading the PLRA and Rule 20 together,

a plaintiff is accountable for the dismissal of a co-plaintiff’s claims” when a court assesses strikes. Hagan v.

Rogers, 570 F.3d 146, 156 (3d Cir. 2009). The Third

Circuit did not address, however, whether “dismissal of

a co-plaintiff’s claims” means all of the co-plaintiff’s

claims or just one. Cf. Boriboune v. Berge, No. 04-cv-0015-C,

2005 WL 1320345, at *4-6 (W.D. Wis. June 1, 2005) (concluding on remand that an individual plaintiff incurs

a strike only when “the total accumulation of a

particular litigant’s claims within the group complaint”

is dismissed for a reason listed in § 1915(g)).

Significantly, this circuit has not relied upon George

for the proposition that § 1915(g) counts a partial

dismissal as a strike. Notably, we do not believe that

the George and Boriboune panels intended their remarks

about § 1915(g) to serve as pronouncements on the

general application of the three-strikes rule to all

prisoner cases because neither opinion was circulated

under Circuit Rule 40(e) despite the contrary precedent

then existing in our sister circuits. We presume, there- 5

fore, that the creation of a circuit split was not intended. Nevertheless, the district court’s reading of the
No. 09-3847 17

See, e.g., Thomas v. Feinerman, No. 09-651-GPM, 2010 WL 6

1241526, at *3 (S.D. Ill. Mar. 23, 2010); Williams v. Westerman,

No. 08-cv-00858-MJR, 2009 WL 2486603, at *1-2 (S.D. Ill. Aug. 13,

2009); Peterson v. Thatcher, No. 09-cv-325 RM, 2009 WL 2341978,

at *1 (N.D. Ind. July 27, 2009).

dicta in George was understandable, and, regrettably,

that dicta has caused confusion among the district

courts, leading several to conclude that prisoners incur

a strike for the partial dismissal of a complaint. Our 6

holding today clarifies that a strike is incurred under

§ 1915(g) when an inmate’s case is dismissed in its

entirety based on the grounds listed in § 1915(g).

Within the context of this case we conclude that

Mr. Turley has not incurred three strikes under § 1915(g)

and remains eligible for IFP status. His first two cases,

Turley v. Cowan and Turley v. Smith, are clearly not

strikes. In each, the district court dismissed some claims

for failure to state a claim, but the remaining claims

were resolved on the merits. As for the third case,

Turley v. Catchings, the district court dismissed it in part

for failure to state a claim and in part for failure to

exhaust administrative remedies. Although we have

acknowledged that a district court may dismiss a complaint if the existence of a valid affirmative defense,

such as the failure to exhaust, is so plain from the face

of the complaint that the suit can be regarded as

frivolous, that is not what happened here. See Walker v.

Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002). Rather,

following the initial dismissal of some claims under
18 No. 09-3847

Federal Rule of Civil Procedure 12(b)(6), the district

court dismissed the remaining unexhausted claims at

summary judgment. We acknowledge that the Sixth

Circuit has in one opinion held that a strike was

incurred where the prisoner’s complaint was dismissed

in part for failure to state a claim and in part for

failure to exhaust, reasoning only that “inclusion of unexhausted claims in a complaint in which all other counts

fail to state a claim will not ‘inject merit into the action’

and transform counts that do not state a claim into

ones that do.” Pointer, 502 F.3d at 373, 376. But in

Pointer, the Sixth Circuit also acknowledged—and we

agree—that a dismissal for failure to plead adequately

exhaustion is distinct from a dismissal for failure to state

a claim, and neither the dismissal of a complaint in

its entirety for failure to exhaust nor the dismissal of

unexhausted claims from an action containing other

viable claims constitutes a strike under § 1915(g). Id. at

372, 374-75. A prisoner’s failure to exhaust administrative remedies is statutorily distinct from his failure to

state a claim upon which relief may be granted. See 28

U.S.C. § 1915A; 42 U.S.C. § 1997e(a); Jones, 549 U.S. at 211-

12; Walker, 288 F.3d at 1009. The dismissal of an action

for failure to exhaust therefore does not incur a strike.

Thompson, 492 F.3d at 438; Owens v. Isaac, 487 F.3d 561,

563 (8th Cir. 2007); Green v. Young, 454 F.3d 405, 409

(4th Cir. 2006); Snider v. Melindez, 199 F.3d 108, 111-12

(2d Cir. 1999). Thus, consistent with the plain language

of the PLRA, we conclude that the dismissal of an

action, in part for failure to exhaust and in part as frivolous, malicious or for failure to state a claim does not
No. 09-3847 19

The procedural posture of this case is unusual given 7

Mr. Turley’s representation by retained counsel and payment

of the appellate fees. In the district court, Mr. Turley’s IFP

motion included an affidavit of indigence. The district court,

however, did not make an express finding of indigence and

concluded only that Mr. Turley was barred from IFP status

based upon his prior litigation. In this court Mr. Turley

initially filed a pro se motion for IFP status and an affidavit of

indigence, Turley v. Gaetz, No. 09-3847 (Docket No. 4, Dec. 21,

2009), but two weeks later he paid the $455 appellate fees.

Nearly two weeks after that, Mr. Turley’s attorneys filed

their disclosure statement. It is not known from the record

whether Mr. Turley’s attorneys are representing him pro bono

or if the law firm paid his appellate fees. On remand, however, the district court must still make a finding as to indigence,

and Mr. Turley’s ability to pay his appellate fees may become

part of that determination.

constitute a strike under § 1915(g). Accordingly, the

dismissal of Mr. Turley’s third case also does not constitute a strike.

Finally, because we conclude that Mr. Turley has not

accumulated three strikes and remains eligible for IFP

status, we need not determine whether his allegations 7

met the imminent-danger exception to the threestrikes rule. See 28 U.S.C. § 1915(g).

Conclusion

For the foregoing reasons, the judgment of the district

court is reversed, and the case is remanded with instruc-
20 No. 09-3847

tions to reconsider whether Mr. Turley may proceed IFP.

On remand the district court will need to determine

whether Mr. Turley is unable to pay the filing fees

as required under § 1915(a)(1).

REVERSED and REMANDED

11-2-10