Jeremy John Wells v. Warden, 58 F.4th 1347

Jeremy Wells, a prisoner, had three prior federal suits: Cook (dismissed at screening for failure to state a claim), Avery County (dismissed at initial review for failure to exhaust administrative remedies), and Sterling (district court granted summary judgment for defendants based on failure to exhaust).
In May 2020 Wells filed a new §1983 complaint alleging Eighth Amendment failure-to-protect and deliberate indifference after a prison beating and delayed medical care; he sought IFP status.
Magistrate and district courts found Wells had three "strikes" under the PLRA §1915(g) (counting Cook, Avery County, and Sterling) and denied IFP, dismissing his 2020 complaint without prejudice.
Wells appealed; a panel initially relied on White v. Lemma to affirm, but the court granted en banc rehearing and reconsidered whether failure-to-exhaust dismissals always qualify as strikes.
The en banc Eleventh Circuit held that a dismissal for failure to exhaust can count as a §1915(g) strike only if the failure-to-exhaust appears on the face of the complaint (an affirmative defense counts as a failure-to-state claim only when evident from the complaint); applied here, Cook and Avery County counted as strikes but Sterling did not because Sterling rested on evidence outside the complaint (summary judgment).
Court reversed the denial of IFP and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a dismissal for failure to exhaust administrative remedies constitutes a "strike" under the PLRA §1915(g)	A dismissal for failure to exhaust is not a §1915(g) strike unless the dismissal also expressly was for frivolousness, maliciousness, or failure to state a claim	A failure-to-exhaust dismissal counts as a strike under Eleventh Circuit precedent and should be treated like a failure-to-state dismissal	A failure-to-exhaust dismissal can be a §1915(g) strike only if the failure-to-exhaust appears on the face of the complaint (because exhaustion is an affirmative defense); court recedes from prior cases to that extent
Whether Wells has three strikes based on Cook, Avery County, and Sterling	Wells: only Cook is a clear strike; Avery County and Sterling should not be counted because they were dismissed for failure to exhaust, not expressly for frivolousness/maliciousness/failure-to-state	Warden: all three prior dismissals qualify (Avery County and Sterling should be treated as strikes because dismissal for failure to exhaust can equal failure-to-state or its orders signaled that ground)	Wells had only two strikes (Cook and Avery County counted; Sterling did not because summary judgment relied on evidence outside the complaint), so dismissal under §1915(g) was erroneous; reversed and remanded

Jones v. Bock, 549 U.S. 199 (2007) (failure to exhaust is an affirmative defense; it constitutes failure-to-state only if apparent on the complaint's face)
Lomax v. Ortiz‑Marquez, 140 S. Ct. 1721 (2020) (PLRA three-strikes provision applies to all failure-to-state dismissals whether with or without prejudice)
Daker v. Commissioner, Georgia Dep't of Corrections, 820 F.3d 1278 (11th Cir. 2016) (must consult prior dismissal order for an express signal that the dismissal was for frivolousness, maliciousness, or failure-to-state)
Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008) (exhaustion is normally a matter in abatement, not merits adjudication)
White v. Lemma, 947 F.3d 1373 (11th Cir. 2020) (prior panel decision treating failure-to-exhaust dismissals as strikes, receded from here)
Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (summary judgment standard: whether evidence requires submission to a jury)
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) (courts may consider documents incorporated into the complaint when ruling on Rule 12(b)(6))
Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001) (affirmative defenses may justify Rule 12(b)(6) dismissal when they appear on the face of the complaint)