Summary
reversing district court counting as a strike a § 1915 dismissal which was entered after plaintiff filed his action
Summary of this case from Flanning v. BakerOpinion
No. 11-10714 D.C. Docket No. 2:10-cv-00641-CEH-SPC
09-22-2011
LEONARD WAYNE TAYLOR, Plaintiff - Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, J. H. KINNEY, Sergeant, WARDEN, HAMILTON CORRECTIONAL INSTITUTION, M. STEVENSON, Classification Officer (former Sergeant), SECRETARY, DOC, et al., Defendants - Appellees.
[DO NOT PUBLISH]
Non-Argument Calendar
Appeal from the United States District Court
for the Middle District of Florida
Before WILSON, PRYOR and BLACK, Circuit Judges. :
Leonard Wayne Taylor, a federal prisoner, appeals pro se the dismissal without prejudice of his complaint under the "three strikes" provision of the Prison Litigation Reform Act. 28 U.S.C. § 1915(g). The provision prohibits a prisoner from filing a civil action if he has, "on 3 or more prior occasions, . . . brought an action or appeal . . . that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted." Id. When Taylor filed his complaint on October 15, 2010, the district court had dismissed only two civil actions filed by Taylor. See Taylor v. Germany, D.C. Docket No. 98-cv-00263; Taylor v. Germany, D.C. Docket No. 98-cv-00305. The district court dismissed Taylor's third civil action afterward on October 29, 2010, see Taylor v. Miami-Dade Cnty. Dep't of Corr., D.C. Docket No. 09-cv-23715, which does not count as a "strike" against Taylor under section 1915(g). We VACATE the judgment dismissing Taylor's complaint, and we REMAND for further proceedings.
VACATED AND REMANDED.