                       PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


JONATHAN LEIGH HENSLEE,               
               Plaintiff-Appellant,
               v.
                                           No. 11-6707
ALVIN KELLER, JR.; KEITH
WHITENER,
            Defendants-Appellees.
                                      
       Appeal from the United States District Court
 for the Western District of North Carolina, at Statesville.
         Robert J. Conrad, Jr., Chief District Judge.
                    (5:11-cv-00050-RJC)

                 Argued: March 22, 2012

                   Decided: June 5, 2012

  Before MOTZ, KING, and GREGORY, Circuit Judges.



Motion granted by published opinion. Judge Gregory wrote
the opinion, in which Judge Motz and Judge King joined.


                        COUNSEL

ARGUED: George C. Chipev, GEORGETOWN UNIVER-
SITY LAW CENTER, Washington, D.C., for Appellant.
Joseph Finarelli, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees. ON
2                          HENSLEE v. KELLER
BRIEF: Steven H. Goldblatt, Director, Doug Keller, Super-
vising Attorney, Nilam Sanghvi, Supervising Attorney, Mar-
ion M. Read, Student Counsel, GEORGETOWN
UNIVERSITY LAW CENTER, Washington, D.C., for
Appellant.


                               OPINION

GREGORY, Circuit Judge:

   Jonathan Leigh Henslee, an inmate currently incarcerated
in the North Carolina Department of Correction at Alexander
Correctional Institute ("AXCI"), appeals the district court’s
dismissal of his complaint for failure to state a claim on which
relief can be granted. Henslee moved to proceed in forma
pauperis ("IFP") on appeal, despite the fact that the district
court’s dismissal of the underlying claim was Henslee’s third
dismissal for failure to state a claim. Because counting the
district court’s dismissal as a third strike under 28 U.S.C.
§ 1915(g) (2006) would effectively insulate the dismissal
from appellate review, we grant Henslee’s motion to proceed
IFP on appeal.

                                     I.

   On January 17, 2011, Henslee filed an inmate grievance
with the North Carolina Department of Correction stating that
AXCI’s failure to enforce its grooming policy1 puts inmates
at risk of contracting various infections.2 On April 7, 2011,
    1
     AXCI does not allow inmates to possess personal disposable razors.
Instead, electric razors are available for purchase for around twenty dol-
lars. For indigent inmates, inmate barbers provide shaves upon request.
AXCI’s grooming policy requires that each inmate barber have three inter-
changeable razor heads at all times; one razor head is disinfected while the
second is in use, and the two heads are switched between each shave; the
third razor head is kept as a backup.
   2
     Henslee appears to assert a violation of his Eighth Amendment rights.
He specifically alleges that inmate barbers do not follow the AXCI groom-
                           HENSLEE v. KELLER                               3
after the grievance was closed without action, Henslee filed
a complaint against Alvin Keller, secretary of the North Caro-
lina Department of Correction, and Keith Whitener, superin-
tendant at AXCI, ("Appellees") seeking declaratory and
injunctive relief pursuant to 28 U.S.C. §§ 2201-02 (2006) and
28 U.S.C. § 1983 (2006). Along with his complaint, Henslee
also moved to proceed IFP and submitted the required docu-
mentation in support of his motion.

   On May 10, 2011, the district court conducted a prelimi-
nary review of Henslee’s complaint pursuant to the Prison
Litigation Reform Act (the "PLRA"), 28 U.S.C. § 1915A
(2006), and dismissed the complaint for failure to state a claim.3
Henslee v. Keller, No. 5:11-cv-00050-RJC (W.D.N.C. May
10, 2011) (unpublished). In its order, the district court noted
that two of Henslee’s previous complaints were dismissed for
failure to state a claim4 and that its dismissal of this complaint
constituted a third strike for the purposes of 28 U.S.C.
§ 1915(g). Id. at *4 n.2. On June 8, 2011, the district court

ing policy (failing to disinfect razor heads between uses, smearing saliva
on a razor before use, wiping his "backside" with a razor before use, and
refusing requests to clean the razor prior to use) and that prison officials
are aware of the violations but do not supervise the inmate barbers’ activi-
ties.
   3
     The district court cited to a case, affirmed by an unpublished per
curiam opinion, finding that failure to properly sanitize razors did not
amount to an Eighth Amendment violation. DeBlasio v. Johnson, 128 F.
Supp. 2d 315, 331 (E.D. Va. 2000), aff’d, 13 F. App’x 96 (4th Cir. 2001)
(per curiam). The district court also noted that the grooming policy did not
require inmates to receive a shave. Finally, the district court concluded
that Henslee failed to state a claim because the grooming policy itself met
all public health-safety requirements and, therefore, deliberate indifference
was not established.
   4
     Henslee v. Todd, No. 1:09-cv-00432 (W.D.N.C. Dec. 15, 2009)
(unpublished), and Henslee v. Turner, No. 1:04-cv-00151 (W.D.N.C. Aug.
19, 2004) (unpublished), were each dismissed by the district court for fail-
ure to state a claim.
4                         HENSLEE v. KELLER
retroactively granted Henslee’s motion to proceed IFP at the
district-court level.

   On May 27, 2011, Henslee timely filed a notice of appeal
of the district court’s dismissal. This Court issued a PLRA
Notice for Appeals to Henslee, and Henslee timely returned
the full application to proceed IFP on appeal. Because Hens-
lee’s application for IFP status on appeal raises an issue not
previously considered by this Court, we assigned counsel to
Henslee and directed briefing on whether an order dismissing
a complaint as frivolous or malicious, or for failure to state a
claim counts as a strike if an appeal of that order is pending
or the time for filing an appeal has not expired.

                                   II.

    The PLRA provides that prisoners may qualify for IFP sta-
tus to bring civil actions challenging the circumstances of
their incarceration. 28 U.S.C. § 1915 (2006). In 1996, Con-
gress amended the statute to address an increase in frivolous
prisoner lawsuits and imposed a "three strikes" rule. Today,
the PLRA precludes prisoners from bringing an action or
appeal IFP "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, mali-
cious, or fails to state a claim upon which relief may be
granted . . . ."5 28 U.S.C. § 1915(g).

  Although this Court has recently addressed what constitutes
a strike, Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir.
2011); McLean v. United States, 566 F.3d 391, 396-97 (4th
Cir. 2009), we have not addressed under what circumstances
a district court’s dismissal acts as a third strike, precluding
IFP status on appeal of the underlying dismissal. More gener-
    5
   Section 1915(g) makes an exception for prisoners "under imminent
danger of serious physical injury," but Henslee does not allege that this
exception applies to him.
                       HENSLEE v. KELLER                       5
ally, the Court has not yet addressed when a dismissal may be
counted for the purposes of the "three strikes" rule.

   The other circuits that have addressed this issue are split as
to whether dismissal counts as a strike, and therefore pre-
cludes IFP status, when the time for appeal has not expired or
appeal is pending.

                               A.

   No fewer than seven circuits have adopted the majority
view. The Fifth, Eighth, Ninth, Tenth, and D.C. Circuits have
found that the dismissal of a prisoner’s civil action as frivo-
lous, malicious, or for failure to state a claim does not count
as a strike for the purpose of § 1915(g) until the litigant has
exhausted or waived his appeals. Silva v. Di Vittorio, 358 F.3d
1090, 1098-99 (9th Cir. 2011); Thompson v. DEA, 492 F.3d
428, 432 (D.C. Cir. 2007); Campbell v. Davenport Police
Dep’t, 471 F.3d 952, 953 (8th Cir. 2006); Jennings v. Natrona
County Detention Ctr. Med. Facility, 175 F.3d 775 (10th Cir.
1999); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). In unpublished opinions, the First and Third Circuits
have also adopted the majority rule, although without any
explanation. Nicholas v. Corbett, 254 Fed. Appx. 117 (3d Cir.
2007) (per curiam) (unpublished); Michaud v. City of Roches-
ter, 2000 WL 1886289, *2 n.1 (1st Cir. Dec. 27, 2000) (per
curiam) (unpublished). The Second Circuit, while explicitly
reserving the issue, has indicated that the majority rule is pre-
sumptively correct. See Chavis v. Chappius, 618 F.3d 162,
169 (2d Cir. 2010).

   The circuits to adopt the majority rule have grounded their
holdings on finding specific terms in § 1915(g) to be ambigu-
ous. Although most clearly expressed by the Fifth Circuit in
Adepegba, these courts have found the term "dismissal" to be
ambiguous and have interpreted it as necessarily including the
limitation of finality. The Adepegba court explained that it
viewed the statute as ambiguous because Congress provided
6                         HENSLEE v. KELLER
no guidance as to "exactly what counts as a dismissal" under
§ 1915(g). 103 F.3d at 387. Because the plain intent of Con-
gress in drafting § 1915(g) was to penalize truly frivolous liti-
gation, rather than to "freeze out meritorious claims or ossify
district court errors," they construed "dismissals" as including
only those for which appeal has been exhausted or waived. Id.
at 388. In Jennings, the Tenth Circuit adopted the Fifth Cir-
cuit’s reasoning, noting the same concerns. 175 F.3d at 780.
The D.C. Circuit addressed this issue in Thompson, where
both parties conceded that a dismissal did not count as a strike
under § 1915(g) until its appeal had been exhausted. 492 F.3d
at 432. The court found the requirement that a dismissal be
final was "fairly implied" by the statute, and based its reason-
ing on a concern that immediately counting dismissals as
strikes would effectively eliminate the appellate function —
a result Congress likely would not have intended absent an
explicit indication. Id. Similarly, the Ninth Circuit adopted the
majority rule, noting that an opposite holding would be a
departure from the normal practice, which under the Federal
Rules of Civil Procedure, generally grants an appeal as of
right from all final district court decisions. Silva, 658 F.3d at
1099–98; see 28 U.S.C. § 1291 (2006).

                                   B.

   The Seventh Circuit is the only appellate court to have held
that a district court dismissal may serve to deny IFP status on
an appeal of the underlying dismissal.6 See Robinson v. Pow-
ell, 297 F.3d 540, 541 (7th Cir. 2002). The court held that the
language of § 1915(g) unambiguously requires denial of IFP
status for any and all actions or appeals filed after a prisoner
received three dismissals. Id. However, the court noted the
legitimate concern that prisoners may be effectively denied
appellate review of the correctness of the decision that
    6
   A district court in the Sixth Circuit has adopted the Robinson court’s
reasoning. See Lacefield v. WREG-Tv, Inc., 2006 WL 889419 (W.D. Tenn.
Mar. 30, 2006).
                           HENSLEE v. KELLER                              7
resulted in their third strike. Id. To address this issue, the
court noted that if a prisoner with three strikes filed a motion
to proceed IFP on an appeal of the underlying dismissal,7 the
court could determine if the district court "might have erred
in dismissing" the complaint and, if so, overrule the third
strike and grant IFP status.8 Id.

                                    III.

   Our analysis must begin with the plain language of the stat-
ute. Tolbert v. Stevenson, 635 F.3d 646, 650 (4th Cir. 2011)
(citing Green v. Young, 454 F.3d 405, 408 (4th Cir. 2006)).
We consider the language of the statute, the context in which
the language is used, and the statute as a whole. Green, 454
F.3d at 408. If the statutory scheme is "coherent and consis-
tent" and the language unambiguous, we will look no further.
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (quoting
United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240
(1989)). However, if any of the statute’s terms are subject to
more than one reasonable interpretation, the language is
ambiguous, and the Court looks beyond the statute’s terms to
determine Congress’s intent in enacting the law. See id. at
345.

                                    A.

   Turning to the language of the statute, we find that the term
"prior occasions" in § 1915(g), which Congress did not
define, may have multiple reasonable interpretations, and
therefore creates ambiguity in the statute. Indeed, appellees
concede that Congress did not define "prior occasions." Sec-
  7
     Such a motion would be brought under Federal Rule of Appellate Pro-
cedure 24(a)(5).
   8
     The availability of this procedure may be limited by the 2002 amend-
ment to Federal Rule of Appellate Procedure 24, which added language
that makes the rule consistent with, and subject to, the requirements of the
PLRA. Fed. R. App. Proc. 24(a)(3)(B) (2002).
8                           HENSLEE v. KELLER
tion 1915(g) does not limit or otherwise define the duration of
an occasion, so it may refer to a single moment or to a contin-
uing event: to an appeal, independent of the underlying
action, or to the continuing claim, inclusive of both the action
and its appeal. Because the word "occasions" is ambiguous,
we reject the Seventh Circuit’s interpretation of § 1915(g).9

                                      B.

   Having determined that "occasions" is subject to multiple
interpretations, we must look to the statute’s "legislative his-
tory, prior interpretations, related statutes, and the underlying
congressional purpose and public policy considerations" to
ascertain its purpose. United States v. Jackson, 759 F.2d 342,
344 (4th Cir. 1985).

   The legislative history of § 1915(g) indicates that Con-
gress’s intention was to limit frivolous prisoner litigation
without preventing meritorious claims from being heard. See
141 Cong. Rec. S7526 (daily ed. May 25, 1995) (statement of
Sen. Kyl) (stating that frivolous suits were "draining precious
judicial resources" and that the act would "free up judicial
resources for claims with merit by both prisoners and nonpri-
soners"). Congress intended to strike a balance between pro-
viding unimpeded access to federal courts and preserving
judicial resources.

   Many of the circuits adopting the majority rule have also
cited to the policy concern that a "hyper-literal" reading of
§ 1915(g) will "freeze out meritorious claims or ossify district
court errors" by effectively preventing the appellate courts
from performing their function. Adepegba, 103 F.3d at 388;
    9
    We also note that even the Seventh Circuit was unwilling to leave
unrestricted the draconian effect of a strictly construed "three strikes" rule.
We agree that a holding contrary to the one we reach today would be
unreasonably severe in light of congressional intent to foster meritorious
prisoner lawsuits.
                           HENSLEE v. KELLER                              9
see also Thompson, 492 F.3d at 433. In enacting § 1915(g),
Congress never indicated that it intended to alter the rule of
28 U.S.C. § 1291, which allows appeals as of right for nearly
all civil actions. In the subset of cases in which a third strike
dismissal is appealed, counting the underlying dismissal as a
strike would "effectively eliminate our appellate function." Id.
at 432. We agree with the Thompson court that Congress
would have explicitly indicated any intent to limit the general
rule allowing appeal as of right. It would therefore be
improper to interpret "occasions," and § 1915(g) generally, to
limit the Court’s appellate function in a defined class of cases.10

   With these considerations in mind, we must decide what
Congress intended the term "occasions" to encompass and,
therefore, what qualifies as a "prior occasion[]" on which a
dismissal may count as a strike under § 1915(g). The interpre-
tation of "occasions" which adheres most closely to Con-
gress’s dual intentions is one that includes both the appeal and
its underlying action. We hold, therefore, that a "prior occa-
sion[]" under § 1915(g) cannot include the dismissal of the
underlying claim, and such a dismissal cannot act as a strike
to preclude IFP status on its own appeal. See Pigg v. F.B.I.,
106 F.3d 1497, 1498 (10th Cir. 1997) (holding district court
dismissal of "plaintiff’s present action" did not constitute
"prior action[]" and thus did not count as third strike). In prac-
tice, our interpretation preserves the Court’s appellate func-
tion and allows review, and potentially reversal, of improper
district court dismissals. Consistent with the statute’s purpose,
our reading also ensures that § 1915(g) will effectively dis-
  10
     It should be noted, however, that under any construction of § 1915(g),
there is a possibility that a litigant will be precluded from obtaining IFP
status on appeal of the underlying action. Whether a dismissal acts as third
strike immediately or only once final, it could preclude IFP status for the
appeal of an intervening, meritorious claim that was erroneously dis-
missed, but which had not yet been appealed.
10                        HENSLEE v. KELLER
suade prisoner litigants from filing frivolous or malicious
claims without unduly hindering meritorious ones.11

                                   IV.

  For the reasons previously given, we grant Henslee’s
motion to proceed in forma pauperis for the purposes of this
appeal. A district court dismissal may not act as a third strike,
precluding a prisoner litigant from proceeding in forma
pauperis, on an appeal of the underlying dismissal.

                                                MOTION GRANTED




  11
     Because our interpretation of the term "prior occasion" resolves this
case, we need not reach Henslee’s alternative argument that, like most of
our sister circuits to address the question, we should read a requirement
of finality into the term "dismissal."
