Jonathan Henslee v. Alvin Keller, 681 F.3d 538

Henslee, an inmate at AXCI, appeals a district court dismissal for failure to state a claim under the Eighth Amendment grooming policy context.
He alleged inmate barbers failed to disinfect razor heads, smeared saliva on a razor, and refused to clean razors, creating risk of infections.
The district court previously dismissed two of Henslee’s prior complaints for failure to state a claim, making this dismissal sua sponte a third strike under § 1915(g).
The district court concluded the grooming policy satisfied public health-safety requirements and denied deliberate indifference.
On appeal, Henslee sought to proceed IFP, and the court of appeals granted IFP pending resolution of whether a district court dismissal counts as a strike when an appeal is pending.
The central issue is how to count “prior occasions” under 28 U.S.C. § 1915(g) for purposes of IFP on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a district court dismissal counts as a strike for § 1915(g) when an appeal is pending.	Henslee argues underlying dismissal should count as strike immediately, barring IFP on appeal.	Appellees contend dismissals count as strikes regardless of appeal status.	A district court dismissal cannot count as a strike for purposes of IFP on appeal.
What qualifies as a ‘prior occasion’ under § 1915(g) for counting strikes.	Three strikes can include prior dismissals that were final and unappealed.	Three strikes should include any prior dismissals regardless of finality or appeal status.	‘Occasions’ includes both the underlying action and its appeal; a underlying dismissal alone does not count as a strike.
Whether Congress intended § 1915(g) to preclude appellate review of district court errors.	Strict interpretation would erase appellate review due to third-strike counting.	Legislative intent to deter frivolous suits could support counting dismissals as strikes.	Congress did not intend to eliminate the appellate function; the court adopts the majority approach to preserve review.

Silva v. Di Vittorio, 358 F.3d 1090 (9th Cir. 2004) (majority rule: dismissal not a strike until appeal exhausted)
Thompson v. DEA, 492 F.3d 428 (D.C. Cir. 2007) (finality implied; prevents eliminating appellate review)
Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996) (federal dissallowance of counting dismissal as a strike prior to exhaustion)
Jennings v. Natrona County Detention Ctr. Med. Facility, 175 F.3d 775 (10th Cir. 1999) (counting dismissals only after exhaustion aligns with § 1915(g) purpose)
Chavis v. Chappius, 618 F.3d 162 (2d Cir. 2010) (majority-rule framework discussed in context of ‘occasions’)
Pigg v. F.B.I., 106 F.3d 1497 (10th Cir. 1997) (precedent that underlying dismissal may not count as a strike)