                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 22, 2012
                                     PUBLISH                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                          FOR THE TENTH CIRCUIT


 JERRY L. THOMAS,

              Plaintiff-Appellant,

 v.                                                     No. 11-6087
                                                (D.C. No. 5:10-CV-00308-W)
 DAVID PARKER; JIM REED;                               (W.D. Okla.)
 SHANNON REED; BECKY GUFFY;
 RODNEY REDMAN; JO GWINN;
 BRANDY PAGE; AMY MADISON;
 DEBBIE MORTON,

              Defendants-Appellees.


                                      ORDER


Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
EBEL, Circuit Judge.


BRORBY, Senior Circuit Judge.



      Plaintiff-appellant Jerry L. Thomas is a prisoner currently serving time in

an Oklahoma state prison. In this civil rights case brought under 42 U.S.C.

§ 1983, plaintiff is seeking to appeal the district court’s entry of summary

judgment in favor of defendants on his claims that employees of the Oklahoma

Department of Corrections violated his constitutional rights during a period of
time when he was incarcerated at the James Crabtree Correctional Center in

Helena, Oklahoma. As framed in defendants’ “Objection” to plaintiff’s motion to

proceed on appeal in forma pauperis, the issue presently before this court is

whether plaintiff has three “strikes” under 28 U.S.C. § 1915(g) because he has

had three prior civil actions or appeals dismissed as frivolous, malicious, or for

failure to state a claim.

       As a starting point, it is undisputed that plaintiff has two strikes under

§ 1915(g) based on two frivolous appeals that he filed in this court in 2010. See

Thomas v. Parker, 609 F.3d 1114, 1120-21 (10th Cir. 2010) (assessing strike for

frivolous appeal); Thomas v. Frech, 400 F. App’x 315, 320 (10th Cir. 2010)

(same). Both of these strikes ripened on March 21, 2011, when the United States

Supreme Court denied plaintiff’s petitions for a writ of certiorari. See Hafed v.

Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011) (“We now clarify

that a strike counts against a prisoner from the date of the Supreme Court’s

denial . . . of a petition for writ of certiorari, if the prisoner filed one . . . .”).

Thus, these two strikes could be counted against plaintiff on April 1, 2011, when

he filed his notice of appeal in this case.

       The pivotal question for us to resolve is whether plaintiff should be

assessed a third strike based on the district court’s dismissal in 2008 of an action

that plaintiff brought in the Western District of Oklahoma under § 1983 and the

Religious Land Use and Institutionalized Persons Act. See Thomas v. Parker,

                                             -2-
Case No. 07-CV-599-W, 2008 WL 2894842 (W.D. Okla. July 25, 2008). In that

case, the district court entered an order that: (1) dismissed two counts in

plaintiff’s complaint for failure to state a claim; and (2) granted summary

judgment and dismissed the remaining sixteen counts in plaintiff’s complaint for

failure to exhaust administrative remedies. Id. at *1, *16-18, *21. Given this

mixed disposition, the question before us is whether the district court’s partial

dismissal for failure to state a claim can count as a strike under § 1915(g).

      Section 1915(g) provides as follows:

      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, . . . 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.

28 U.S.C. § 1915(g) (emphasis added).

      Because the statute refers to dismissals of “actions,” as opposed to

“claims,” it is well established that a partial dismissal based on one of the

grounds enumerated in § 1915(g) is generally not a proper basis for assessing a

strike. See Thompson v. Drug Enforcement Admin., 492 F.3d 428, 432

(D.C. Cir. 2007) (holding that plain language of § 1915(g) provides that a

plaintiff will incur a strike only when an entire action is dismissed based on one

of the listed grounds); Turley v. Gaetz, 625 F.3d 1005, 1012 (7th Cir. 2010)

(same); Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir. 2011) (same). But in a

                                          -3-
persuasive decision, the Sixth Circuit has held that a strike can properly be

assessed under § 1915(g) when, as occurred in Case No. 07-CV-599-W, the

plaintiff’s claims are dismissed in part for failure to state a claim and in part for

failure to exhaust administrative remedies, and no claims are allowed to proceed

on the merits. See Pointer v. Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007)

(“[W]e hold that where a complaint is dismissed in part . . . for failure to exhaust

administrative remedies and in part . . . because ‘it is frivolous, malicious, or fails

to state a claim upon which relief may be granted,’ the dismissal should be

counted as a strike under 28 U.S.C. § 1915(g).”). In reaching this holding, the

Sixth Circuit relied heavily on the district court decision in Clemons v. Young,

240 F. Supp. 2d 639 (E.D. Mich. 2003). See Pointer, 502 F.3d at 372-77.

      We are persuaded by the Sixth Circuit’s reasoning in Pointer, and we thus

conclude that plaintiff has a third strike based on the district court’s partial

dismissal of two counts for failure to state a claim in Case No. 07-CV-599-W.1

First, as in Pointer, none of the unexhausted claims in Case No. 07-CV-599-W

“were found to have merit or to state a claim.” Pointer, 502 F.3d at 374. Instead,

they were in effect a nullity due to the failure to exhaust. Second, “the

congressional purpose of § 1915(g) would be subverted if, by adding unexhausted



1
       The partial dismissal in Case No. 07-CV-599-W ripened into a strike on
October 5, 2009, when the United States Supreme Court denied plaintiff’s petition
for a writ of certiorari. See Hafed, 635 F.3d at 1176.

                                          -4-
claims to a complaint that otherwise does not state a claim upon which relief may

be granted, a prisoner could repeatedly escape imposition of a strike and thus

evade the bar imposed by the three-strikes rule.” Id.; see also Clemons,

240 F. Supp. 2d at 642 (“The entire purpose of § 1915(g) would be subverted if

prisoners could skirt its procedural bar merely by appending unexhausted claims

to a complaint otherwise subject to summary dismissal on the merits.”).

      At this point, it appears that the Seventh Circuit is the only other circuit

court that has addressed the precise mixed-dismissal issue raised by this appeal,

and the Seventh Circuit reached the opposite conclusion. See Turley, 625 F.3d

at 1013 (“Thus, consistent with the plain language of the [Prison Litigation

Reform Act], we conclude that the dismissal of an action, in part for failure to

exhaust and in part as frivolous, malicious or for failure to state a claim does not

constitute a strike under § 1915(g).”). The Seventh Circuit reasoned that “[a]

prisoner’s failure to exhaust administrative remedies is statutorily distinct from

his failure to state a claim upon which relief may be granted. The dismissal of an

action for failure to exhaust therefore does not incur a strike.” Id. (citations

omitted). We find this reasoning unpersuasive. In Pointer, the Sixth Circuit did

not impose a strike due to the prisoner’s failure to exhaust. Instead, the court




                                          -5-
imposed a strike because the prisoner had asserted several claims that failed to

state a claim for relief. As the court explained:

      It is the very nature of a mixed dismissal . . . that strongly supports
      application of the Clemons approach. If [the prior case] was solely
      dismissed for failure to exhaust, [plaintiff] would have a more
      compelling argument that a strike should not be assessed. But where
      an entire complaint is dismissed, in part for failure to exhaust and in
      part for one of the grounds stated in § 1915(g), the dismissal should
      count as a strike.

Pointer, 502 F.3d at 375-76 (footnote omitted).

      In sum, because it appears to be the better-reasoned decision, we adopt the

Sixth Circuit’s reasoning in Pointer and assess a third strike against plaintiff.

Accordingly, we: (1) DENY plaintiff’s motion for leave to proceed on appeal

without prepayment of costs or fees and VACATE the order entered by this court

on June 1, 2011, assessing partial payments; and (2) ORDER plaintiff, within

thirty days, to either pay the entire appellate filing fee of $455.00 to the district

court or show cause why he is exempt from the three-strikes bar in 28 U.S.C.

§ 1915(g) because he is under imminent danger of serious physical injury. If

plaintiff subsequently fails to make full payment or adequately show that he

meets the imminent harm exception, this appeal will be promptly dismissed.




                                          -6-
