United States Court of Appeals 

for the Fifth Circuit 

No. 20-30672 

Gator Mitchell, 

Plaintiff—Appellant, 

versus

Sergeant Robert Goings; Sergeant John Craine; 

Sergeant Gary King; Captain Brink Hillman; 

Warden Robert Tanner; Louisiana State, through 

Louisiana Department of Public Safety and 

Corrections, 

Defendants—Appellees. 

Appeal from the United States District Court 

for the Eastern District of Louisiana 

USDC No. 2:20-CV-1333 

Before Jones, Stewart, and Duncan, Circuit Judges. 

Edith H. Jones, Circuit Judge: 

Gator Mitchell appeals the dismissal of his claims as barred by 

28 U.S.C. § 1915(g), colloquially known as the “three strikes” provision of 

the Prison Litigation Reform Act of 1995 (“PLRA”). That provision is 

United States Court of Appeals 

Fifth Circuit 

FILED 

June 9, 2022 

Lyle W. Cayce 

Clerk 

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2 

inapplicable because Mitchell’s claims were removed to, as opposed to 

brought in, federal court. We therefore Reverse and Remand. 

I. BACKGROUND

Mitchell is confined in the B.B. “Sixty” Rayburn Correctional Center 

(“RCC”) in Angie, Louisiana. Mitchell alleges that, beginning in January 

2019, guards Robert Goings, John Craine, Gary King, and Brink Hillman 

abused and intimidated him. Mitchell alleges he reported this treatment to 

Robert Tanner, the warden, who took no action. Mitchell then filed a 

grievance against Goings in mid-March 2019. The result of the internal 

investigation is, however, uncertain. 

In March 2020, Mitchell elected to bring § 1983 and negligence claims 

in Louisiana state court against the State of Louisiana (through the 

Department of Public Safety and Corrections) and the above-named 

individual Defendants. Importantly, he obtained leave to proceed in forma 

pauperis (IFP). Goings then timely removed the action to federal court 

pursuant to 28 U.S.C. § 1441(a) and paid the filing fee. The other 

Defendants consented. Mitchell filed an amended complaint several weeks 

later that raised the same claims. 

Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6) and 

for summary judgment, maintaining in part that Mitchell had not exhausted 

his administrative remedies. Mitchell opposed the motions and sought 

limited discovery on the issue of exhaustion. Hillman replied, again 

contending that Mitchell failed to exhaust by seeking relief through the prison 

grievance system. 

The parties consented to proceed before a magistrate judge. The 

magistrate judge determined that Mitchell had at least three prior “strikes” 

arising from his previous frivolous prison litigation. See 28 U.S.C. 

§§ 1915(e)(2)(B)(i)-(ii), (g). The magistrate judge also ruled that § 1915(g) 

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applied to actions, like this one, that are removed from state court. That 

meant Mitchell could not proceed IFP unless he was in imminent danger of 

serious physical injury. Mitchell made no such showing. The magistrate 

judge accordingly dismissed the action without prejudice and specified that 

Mitchell may refile after paying the requisite fee. 

Mitchell timely, but unsuccessfully, sought reconsideration or a new 

trial pursuant to Rules 59 and 60. Mitchell contended that he had no 

opportunity to address the three strikes issue, and § 1915(g) was inapplicable 

because he had not sought to proceed IFP in federal court after Goings 

removed the action. In denying Mitchell’s motion, the court reasoned that 

Mitchell’s failure to move to proceed IFP in federal court was irrelevant 

because he was granted IFP status in state court and that permission 

“remain[ed] in full force and effect.” The magistrate judge then 

reemphasized that § 1915(g) applies to cases that were filed IFP in state court 

and removed to federal court. Mitchell appealed. 

II. DISCUSSION

This court reviews the district court’s interpretation of the PLRA de 

novo, and we review de novo the court’s denial of a motion for reconsideration 

based on a question of law. See Jackson v. Johnson, 475 F.3d 261, 265 (5th 

Cir. 2007) (per curiam) (quotation omitted); see also Dearmore v. City of 

Garland, 519 F.3d 517, 520 (5th Cir. 2008) (citation omitted). 

Mitchell maintains that the magistrate judge erred by dismissing his 

action pursuant to § 1915(g) of the PLRA. Defendants respond that this 

court lacks jurisdiction to review Mitchell’s claims; the magistrate judge 

correctly applied the three strikes rule; and the court may alternatively affirm 

the judgment based on Mitchell’s failure to exhaust his prison administrative 

remedies. We disagree with each of Defendants’ contentions. 

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A.

Under 28 U.S.C. § 1291, this court is only empowered to review 

“final decisions.” Goings, Tanner, and the state acknowledge that the 

magistrate judge’s ruling “dispose[d] of the entire case” and there was 

“nothing left for [the magistrate judge] to do.” But they maintain that the 

action is not “final” because the magistrate judge dismissed the action 

without prejudice and authorized Mitchell to refile if he paid the filing fee. 

This is incorrect. 

We exercise jurisdiction over this appeal because “[t]he dismissal of 

an action—whether with or without prejudice—is final and appealable.” 

Umbrella Inv. Grp., L.L.C. v. Wolters Kluwer Fin. Servs., Inc., 972 F.3d 710, 

712 (5th Cir. 2020) (quoting Ciralsky v. C.I.A., 355 F.3d 661, 666 (D.C. Cir. 

2004) (alteration in original)). The magistrate judge “dismissed [this action] 

as barred by the three strikes provision of §1915(g)[.]” “That the dismissal 

was without prejudice to filing another suit does not make the cause 

unappealable, for denial of relief and dismissal of the case ended this suit so 

far as the [magistrate judge] was concerned.” United States v. Wallace & 

Tiernan Co., 336 U.S. 793, 794 n. 1, 69 S. Ct. 824, 825 (1949); see also

15A Charles Alan Wright et al., Federal Practice and 

Procedure § 3914.6 (2nd ed. April 2022 update) (“Many cases reflect the 

rule that a dismissal without prejudice is appealable as a final judgment.”). 

B. 

“What this country needs, Congress [has] decided, is fewer and better 

prisoner suits.” Jones v. Bock, 549 U.S. 199, 203, 127 S. Ct. 910, 914 (2007) 

(citation omitted). To that end, the PLRA instituted “a variety of reforms 

designed to filter out the bad claims and facilitate consideration of the good.” 

Id. at 549 U.S. at 204, 127 S. Ct. at 914. The three strikes rule is one such 

filtering device. It provides that: 

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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). Without this rule, litigious prisoners “lack[] an[y] 

economic incentive to refrain from filing frivolous, malicious, or repetitive 

lawsuits.” Neitzke v. Williams, 490 U.S. 319, 324, 109 S. Ct. 1827, 1831 

(1989). With the rule, prisoners must think hard before involving federal 

courts in their grievances. 

Actions removed from state courts, however, do not count as 

“strikes” under § 1915(g) because they are not brought in federal court. “To 

‘bring’ an action has long meant to initiate or commence it, not to prosecute 

or to continue it.” Maldonado v. Baker Cnty. Sheriff's Off., 23 F.4th 1299, 

1304 (11th Cir. 2022) (citing Black’s Law Dictionary 192 (6th ed. 

1990)); see also Dooley v. Wetzel, 957 F.3d 366, 377 n.9 (3d Cir. 2020). 

Moreover, “[t]o bring an action under § 1915, the prisoner must seek and be 

granted the ability to proceed [IFP] in a ‘court of the United States’ by 

submitting ‘an affidavit that includes a statement of all assets such [person] 

possesses’ to prove indigency.” Maldonado, 23 F.4th at 1305 (quoting 

28 U.S.C. § 1915(a)). A court of the United States “includes the Supreme 

Court of the United States, courts of appeals, district courts . . .[,] and any 

court created by Act of Congress the judges of which are entitled to hold 

office during good behavior.” 28 U.S.C. § 451. State courts are not included. 

Thus, “[w]hen a defendant removes a case from state to federal court, it 

cannot be said that a prisoner-plaintiff was the one who brought the case in 

federal court.” Harris v. Mangum, 863 F.3d 1133, 1141 (9th Cir. 2017). We 

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agree with the Third, Seventh, Ninth, Tenth, and Eleventh Circuits that 

§ 1915(g) is inapplicable when an action is removed from state court. See 

Maldonado, 23 F.4th at 1306-07; Hill v. Madison County, 983 F.3d 904, 907-

08 (7th Cir. 2020); Dooley, 957 F.3d at 377 n.9; Woodson v. McCollum, 

875 F.3d 1304, 1307 (10th Cir. 2017); Harris, 863 F.3d at 1140-41. 

Nonetheless, we point out that Rule 11 also provides courts with a 

“means to penalize the pursuit of frivolous suits that are removed to federal 

court.” Hill, 983 F.3d at 907. And “[i]f a prisoner fails to pay a penalty 

imposed under Rule 11, the court may take other steps, such as revoking the 

privilege of litigating [IFP] or barring new suits altogether.” Id. (citation 

omitted). Courts may consider these measures where appropriate even 

where § 1915(g) is inapplicable. 

Because Mitchell did not bring this action in any court of the United 

States, the magistrate judge erred by determining that his claims were barred 

by § 1915(g).1

C. 

The magistrate judge did not address whether Mitchell exhausted his 

administrative remedies. Several Defendants nevertheless urge affirmance 

based on Mitchell’s alleged failure to exhaust prison administrative remedies. 

But “we are a court of review, not first view.” Montano v. Texas, 

867 F.3d 540, 546 (5th Cir. 2017) (quoting United States v. Houston, 792 F.3d 

663, 669 (6th Cir. 2015)). That is why “[t]he issue of . . . exhaustion of [] 

1

 It is also worth emphasizing that “the federal filing fee was paid in full here by 

[Goings], so the federal courts are not burdened by an action without payment.” 

Maldonado, 23 F.4th at 1306. Absent removal, any burden in adjudicating Mitchell’s claims 

would have fallen on the Louisiana judiciary; Defendants, not Mitchell, shifted the burden 

to this court. Finally, Mitchell is now represented by counsel on appeal and the appellate 

filing fee has been duly paid. 

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administrative remedies is . . . appropriate for the district court to decide in 

the first instance.” Cano-Miranda v. Ashcroft, 262 F.3d 477, 479 (5th Cir. 

2001); see also Jones, 549 U.S. at 219 , 127 S. Ct. at 923 (“We leave it to the 

court below in the first instance to determine the sufficiency of the 

exhaustion in these cases.”). The record here is devoid of any findings 

regarding exhaustion. Indeed, the issue of exhaustion was in discovery by the 

parties when this appeal occurred. As Mitchell suggests, remand is required 

to determine this question.

The judgment is REVERSED and REMANDED for further 

proceedings consistent herewith. 

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