The Prison Litigation Reform Act (PLRA); Payment of filing fees by prisoners; The PLRA’s “three-strikes” rule; 28 USC § 1915(g); Whether mixed-claim actions (those involving claims covered by the PLRA & claims not covered by it) count as strikes; Pointer v Wilkinson

[This appeal was from the WD-MI.] The court joined other circuits in holding that under § 1915(g) of the PLRA, “all claims in a complaint, not just some of them, must be dismissed on grounds listed in the Act for the dismissal to count as a strike.” Thus, it vacated the district court’s denial of in forma pauperis status to plaintiff-prisoner (Crump) based on the PLRA’s three-strikes rule and dismissal of his action against defendants-prison employees. Crump, who is incarcerated at a correctional facility in Michigan, sued several prison employees under § 1983 for allegedly withholding treatment for his multiple sclerosis. He “did not pay his filing fee and instead sought leave to proceed in forma pauperis. The district court held that the Act’s three-strikes rule disqualified him from obtaining” this relief. On appeal, the court framed the question as whether “mixed-claim actions, those involving claims covered by the Act and claims not covered by the Act, count as strikes under the Prison Litigation Reform Act?” Reviewing the PLRA’s language, the court noted that the Act “refers to ‘action[s] or appeal[s],’ not claims, when it mentions what counts as a strike.” The court explained that an “action” usually means the whole “case containing one or multiple claims.” It agreed with other circuits that “‘a prisoner’s entire “action or appeal” must be dismissed on a § 1915(g) ground to count as a strike under the PLRA.’” The court determined that “Crump’s prior actions—one that included a decision not to exercise supplemental jurisdiction over state-law claims and one that included a dismissal on Eleventh Amendment immunity grounds—do not count as strikes.” It did not see any “good ground to extend” the reasoning in Pointer, noting that decision’s “reasoning has not fared well in the other circuits, and it’s not clear that it respects the language of the Act. Either way, the essential point today is that Pointer’s holding does not cover these dismissals. A dismissal for failure to exhaust is different in kind from today’s dismissals. A failure to exhaust is an affirmative defense that defeats liability. . . . A refusal to exercise supplemental jurisdiction and an Eleventh Amendment dismissal amount to defenses that avoid deciding liability altogether.” Vacated and remanded.