           Case: 12-13169   Date Filed: 02/27/2013   Page: 1 of 6

                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-13169
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 3:10-cv-00070-WBH


WESLEY EUGENE DOLLAR,

                                                            Plaintiff-Appellant,

                                  versus

COWETA COUNTY SHERIFF OFFICE,
MEDICAL STAFF,
SGT. PAT H. LYONS,
SHERIFF MICHAEL S. YEAGER,
CAPTAIN LYNN WOOD,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (February 27, 2013)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:
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      Wesley Eugene Dollar, a Georgia prisoner proceeding pro se, appeals the

district court’s order dismissing his 42 U.S.C. § 1983 civil rights complaint. The

district court dismissed Dollar’s complaint without prejudice under the three

strikes provision of 28 U.S.C. § 1915(g), concluding that Dollar had been

erroneously granted leave to proceed in forma pauperis. After review, we vacate

the district court’s order of dismissal and remand this appeal for further

proceedings.

                          I. PROCEDURAL HISTORY

      On June 11, 2010, Dollar filed a § 1983 complaint against the Coweta

County Sheriff Office, the Coweta County Jail medical staff, and various prison

officers. Dollar’s complaint alleged that in November 2008, he was arrested and

taken to the Coweta County Jail. Dollar alleged that, while at the jail, (1) he was

interviewed without being advised of his Miranda rights and while still under the

influence of pain medication and needing detoxification; (2) during the interview,

he was tightly handcuffed to a chair, which injured his left hand; (3) he was forced

to sleep on the floor for three weeks due to overcrowding; (4) he did not have

access to fresh drinking water, suffered respiratory problems due to a raw sewage

leak and staph infections from rusty beds and showers; (5) jail medical staff

provided inadequate medical treatment for his injured left hand, spinal injury and




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respiratory problems; and (6) he was denied access to a law library or other legal

assistance and the right to exhaust his administrative remedies.

      The district court dismissed Dollar’s complaint as frivolous pursuant to 28

U.S.C. § 1915A, concluding that his claims of unlawful confinement were

improperly brought under § 1983 and should have been brought as a habeas

petition. The district court dismissed his claims relating to excessive force and

confinement conditions because Dollar had not exhausted all administrative

remedies at the jail.

      Dollar appealed to this Court, which affirmed the district court’s dismissal of

his unlawful confinement claims. See Dollar v. Coweta Cnty. Sheriff Office, et al.,

446 F. App’x 248, 251 (2011). However, this Court vacated the dismissal of

Dollar’s excessive force and conditions-of-confinement claims and ordered the

appeal remanded to the district court as to those claims, concluding that it was not

clear from the face of the complaint that Dollar had failed to exhaust available

administrative remedies. Id. at 251-52.

               II. REMAND BEFORE THE DISTRICT COURT

      On remand from this Court, the district court determined sua sponte that

Dollar previously had filed numerous civil actions in federal courts while

incarcerated, at least three of which had been dismissed as frivolous pursuant to 28

U.S.C. § 1915(g). The district court therefore concluded that, in light of these


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dismissals, § 1915(g) prohibited Dollar from bringing any civil actions while

proceeding in forma pauperis. On this basis, the district court found that it had

erroneously granted Dollar leave to proceed in forma pauperis and dismissed his

§ 1983 complaint without prejudice. Thereafter, Dollar filed a timely notice of

appeal. 1

                                    III. DISCUSSION

        Under the Prisoner Litigation Reform Act (“PLRA”) prisoners are permitted

to file only three meritless suits in the in forma pauperis status. 28 U.S.C.

§ 1915(g). Specifically, the “three strikes” provision of the PLRA provides:

       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.

Id. The purpose of the PLRA is to conserve judicial resources by preventing

meritless cases initiated by prisoners. Vanderberg v. Donaldson, 259 F.3d 1321,

1324 (11th Cir. 2001). “After the third meritless suit, the prisoner must pay the full

filing fee at the time he initiates suit.” Id.

       Our published decisions have consistently looked at the time of filing when

considering whether § 1915(g) prevents a prisoner from proceeding in forma

       1
        We review de novo the district court’s dismissal of a complaint pursuant to 28 U.S.C.
§ 1915(g). Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).
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pauperis. See Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004) (stating

that a prisoner is prevented from proceeding in forma pauperis “after he has filed

three meritless lawsuits” (emphasis added)); Dupree v. Palmer, 284 F.3d 1234,

1236 (11th Cir. 2002) (examining whether a prisoner’s complaint fell under

§ 1915(g) “at the moment of filing”)); Vanderberg, 259 F.3d at 1324 (“After the

third meritless suit, the prisoner must pay the full filing fee at the time he initiates

suit.” (emphasis added)). The plain reading of § 1915(g) also suggests that strikes

are to be counted at the time the complaint is filed. The relevant language of the

provision reads “[i]n no event shall a prisoner bring a civil action . . . if the

prisoner has, on 3 or more prior occasions . . . 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. . . .” 28 U.S.C. § 1915(g) (emphasis added).

      After review of Dollar’s litigation record, we conclude that the district court

erred when it dismissed Dollar’s complaint under § 1915(g). When Dollar filed his

complaint in the present case on June 11, 2010, he only had “one strike” against

him, based on the dismissal of his 2007 case for frivolousness. See Dollar v.

Duffey, 3:07-cv-0085-JTC (N.D. Ga., dismissed September 28, 2007). With the

exception of this 2007 case, the district court supported its dismissal order by




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referencing cases brought by Dollar that were dismissed in 2011. 2 As such, Dollar

filed his complaint in the present case prior to becoming a “three-striker,” and the

district court’s conclusion that Dollar was prohibited from proceeding in forma

pauperis is erroneous.

       Accordingly, we vacate the district court’s dismissal order and remand this

appeal to the district court for further proceedings consistent with this opinion. 3

       VACATED AND REMANDED.




       2
         In support of its holding, the district court cited to these cases filed by Dollar: Dollar v.
Carter, Case No. 11-13591 (11th Cir. Nov. 23, 2011), Dollar v. Carter, Case No. 10-15195 (11th
Cir., Apr. 15, 2011); Dollar v. Carter, 5:10-cv-208 (M.D. Ga., July 26, 2011); Dollar v. Kemp,
3:11-cv-0018-WLB (M.D. Ga., July 8, 2011); Dollar v. Newnan Times-Herald, et al., 3:10-cv-
83-WBH (N.D. Ga., Jan. 3, 2011). Dollar’s 2007 case was Dollar v. Duffey, 3:07-cv-0085-JTC
(N.D. Ga., Sept. 28, 2007).
       3
        Dollar’s request, made by letter dated September 25, 2012, and construed by this Court
as a motion for sanctions, is DENIED.
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