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Eleventh Circuit Calls Georgia Prisoner’s Dismissed Suit Outside PLRA “Strike Zone”

by David M. Reutter

In an en banc ruling on February 1, 2023, the full U.S. Court of Appeals for the Eleventh Circuit held that a Georgia prisoner’s case dismissed for failure to exhaust administrative remedies might amount to dismissal “for failure to state a claim”—an enumerated ground for a “strike” under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e—but only if the exhaustion failure “appears on the face of the prisoner’s complaint.” The Court’s decision thus reversed a district court’s finding that Georgia prisoner Jeremy John Wells had three “strikes,” meaning he is not yet barred from claiming indigent status to have filing fees waived and proceed in forma pauperis (IFP).

Wells alleged that while housed at Augusta State Medical Prison on May 29, 2020, he complained to a prison official that “two gang members” were “extorting, selling drugs,” and “beating inmates,” the Eleventh Circuit recalled. Within the week, Wells followed up with a letter “reporting the gang activity” to the warden on June 5, 2020. “Nine days later, on June 14, 2020, Wells was ‘beaten’ by the two gang members,” the Court continued, leaving his left ear drum “busted” and “burns to both eyes,” plus “a contusion to [his] right eye” and an “abrasion to the inside back of [his] throat,” along with bumps and bruises on his “head, shoulders, and hands.” After the beating, a prison guard “started laughing” at Wells, who said he then endured “a sixteen-­hour delay before he received medical treatment.”

Wells filed suit pro se against various prison officials, alleging violation of his Eighth Amendment rights. He sought IFP status, triggering a PLRA screening process. As amended by PLRA, § 1915 bars a prisoner from claiming IFP status if he has previously “brought” three actions in federal court that were then dismissed upon a finding that “(1) the case is frivolous, (2) the case is malicious, (3) the complaint fails to state a claim, or (4) the plaintiff seeks monetary relief from a defendant who is immune from such relief.” The U.S. District Court for the Southern District of Georgia found Wells had three such “strikes” and denied his IFP motion, dismissing the complaint without prejudice. Wells appealed.

The Eleventh Circuit “agree[d] with our sister circuits” that have applied “to the three-­strikes rule” the screening requirements laid out in Jones v. Bock, 549 U.S. 199 (2007). Like other affirmative defenses, though, failure to exhaust administrative remedies or state a claim “depends on whether the allegations in the complaint suffice to establish that ground,” the Court continued. Backing off its holdings in Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998) and White v. Lemma, 947 F.3d 1373 (11th Cir. 2020), the Court declared that “dismissal for failure to exhaust administrative remedies is not always a dismissal for failure to state a claim.”

The Court then turned to determine whether Wells had three strikes. In Daker v. Comm’r., Ga. Dep’t of Corr., 820 F.3d 1278 (11th Cir. 2016), the Court cautioned that “the dismissing court does not need to invoke any magic words or even use the word ‘frivolous,’ although such language certainly aids our review.” However, in that same ruling the Court said the dismissal order “must give some signal” that it found “the action or appeal was frivolous.”

In two of Wells’ prior dismissals, the district court clearly indicated that dismissal was on grounds constituting a strike. The third action, however, was a summary judgment motion that relied on facts outside the complaint to dismiss it. So that dismissal was not based upon facts appearing on the face of the complaint and therefore didn’t count as a “strike,” the Court concluded, vacating the district court’s order and remanding the case. Before the Court, Wells was represented by attorneys with the Roderick and Solange McArthur Justice Center in Washington, D.C. See: Wells v. Brown, 58 F.4th 1347 (11th Cir. 2023).

Back at the district court, Wells was granted IFP status. But his complaint was quickly dismissed again on April 28, 2023; following the recommendation of a magistrate judge made four weeks earlier, the district court said no accusation Wells made against prison officials rose to the level of deliberate indifference to his serious need. See: Wells v. Philbin, 2023 U.S. Dist. LEXIS 75371 (S.D. Ga.); and 2023 U.S. Dist. LEXIS 74381 (S.D. Ga.).

Sadly for Wells, that might be the end of his case; a copy of the district court’s order that was mailed to him was returned marked “deceased” on May 16, 2023. But he leaves an important lesson for prisoners filing suit not to detail administrative remedies on the face of their complaint. While it may be rare for prison officials to neglect raising failure to exhaust remedies as an affirmative defense, this oversight has resulted in several otherwise barred claims proceeding to judgment.   

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Related legal case

Wells v. Brown