              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 08a0209n.06
                           Filed: April 22, 2008

                                       No. 07-3930

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT


DAVID E. FEATHERS,

       Plaintiff-Appellant,

              v.                                               On Appeal from the United
                                                               States District Court for the
GERALD T. MCFAUL, Sheriff, et al.,                             Northern District of Ohio at
                                                               Cleveland
       Defendants-Appellees.


                                                         /

Before:       GUY, SUHRHEINRICH, and GIBBONS, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.          Plaintiff David E. Feathers, a state prisoner

proceeding pro se, appeals from the dismissal of this civil action without prejudice pursuant

to the so-called “three strikes” provision of 28 U.S.C. § 1915(g). Concluding upon review

that at least two of the four previously dismissed lawsuits identified by the district court

should not be counted as “strikes,” we reverse dismissal of the complaint and remand for

further consideration of the application to proceed in forma pauperis (IFP).

                                             I.

       The complaint in this case, filed with an application to proceed without prepayment

of fees on January 26, 2007, alleged a failure to protect plaintiff from assault and severe

injury by another inmate while in protective custody at the Cuyahoga County Jail, and
No. 07-3930                                                                                  2

deliberate indifference to his medical needs in the aftermath. Plaintiff alleged that he was

in a coma for three days and recovered but continued to experience headaches and buzzing

in his ears. Plaintiff also alleged that since his transfer to the Lake Erie Correctional

Institution, prison officials have demonstrated indifference to his medical needs by forcing

him to attend GED classes and not assigning him to a lower bunk. It is also alleged that

plaintiff was subjected to retaliatory actions because of his complaints concerning the alleged

failure to accommodate his medical needs. In prescreening the case before service upon the

defendants, the district court ordered that the case be dismissed without prejudice because:

               Feathers has on at least three occasions filed a civil action failing to
       state a claim in this court. See Feathers v. Gansheimer, Case No. 1:06 CV
       487; Feathers v. Portage County, 5:05 CV 681; Feathers v. Wilson, 4:01 CV
       1708; Feathers v. Brown, 5:00 CV 2430. Thus, as the complaint in the instant
       action does not contain allegations reasonably suggesting he is in imminent
       danger of serious physical injury, he may not proceed in forma pauperis.

(Order of 2/8/07, p.2.) Plaintiff sought reconsideration, arguing that (1) he was not granted

leave to proceed IFP in these cases; (2) he was not served with notice of dismissal in two of

the four cases; and (3) he was alleging imminent danger in his requests for injunction. The

motion was denied in a marginal “non-document” order, a motion for extension of time to

file notice of appeal was granted, and plaintiff was permitted to appeal IFP.

                                              II.

       Section 1915(g), adopted as part of the Prison Litigation Reform Act of 1995 (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 [without prepayment of fees] if the
       prisoner has, on 3 or more occasions, while incarcerated or detained in any
No. 07-3930                                                                                    3

       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.

Plaintiff’s main argument seems to be that two of the four previously dismissed prisoner civil

rights cases should not have been counted as “strikes” because he says he never received

notice of their dismissal. The statute, however, imposes no notice requirement for prior

dismissals to count as a “strike.”

       Nonetheless, our review of the docket sheets and orders entered in the four mentioned

cases reveals that although they were all dismissed, at least two of them were dismissed for

failure to adequately plead exhaustion of administrative remedies as required by 28 U.S.C.

§ 1997e. This court addressed a related issue concerning the counting of “strikes” under §

1915(g) in Pointer v. Wilkinson, 502 F.3d 369 (6th Cir. 2007), and held that a prisoner’s prior

complaint dismissed in part for failure to state a claim and in part without prejudice for

failure to exhaust administrative remedies would qualify as a “strike.” That is, the inclusion

of some claims dismissed for failure to exhaust would not prevent the case from counting as

a strike where other claims were dismissed for failure to state a claim.

       The Pointer decision highlights that a dismissal without prejudice for failure to

adequately plead exhaustion may be distinct from a dismissal for failure to state a claim upon

which relief may be granted; only the latter being one of the three grounds enumerated in the

statute as qualifying as a strike. While it remains possible for failure to exhaust to be a basis

for dismissal under Fed. R. Civ. P. 12(b)(6), see Jones v. Bock, 127 S. Ct. 910, 921 (2007),

the dismissal orders in Feathers v. Gansheimer and Feathers v. Wilson reflect that those
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cases were dismissed sua sponte and in their entirety for failure to satisfy this court’s now-

abrogated requirement that prisoners specifically plead exhaustion of their administrative

remedies. The dismissals of those complaints therefore were not dismissals on the grounds

that the cases were frivolous, malicious, or failed to state a claim upon which relief may be

granted. See Snider v. Melindez, 199 F.3d 108, 112 (2d Cir. 1999) (concluding that failure

to state a claim as used in § 1997e(c) and § 1915(g) does not include failure to exhaust

administrative remedies—at least absent a finding that the failure to exhaust permanently

bars the suit); see also Green v. Young, 454 F.3d 405, 409 (4th Cir. 2006) (holding that “a

routine dismissal for failure to exhaust administrative remedies does not count as a strike

under § 1915(g)”).

        Finding that at least two of the four prior dismissals should not have been counted as

“strikes,” we REVERSE the dismissal in this case and REMAND for further consideration

of plaintiff’s application to proceed without prepayment of fees.1




        1
         Accordingly, we need not address plaintiff’s argument that the district court erred in finding that
he had not alleged facts reasonably suggesting that he was under imminent danger of serious physical injury.
