Lonnie Everett v. Major Whaley, 504 F. App'x 245

Everett appeals a district court order dismissing his 42 U.S.C. §1983 complaint as potentially barred by the PLRA.
The district court count of three qualifying strikes relied on Everett’s prior actions: Sydnoski, Wilkerson, and an appeal to this Court.
This court concludes Sydnoski and Wilkerson do not independently qualify as strikes under the PLRA’s three-strikes rule.
The court declines to decide whether Wilkerson properly qualifies as a strike and remands for possible reexamination if necessary.
The court vacates the dismissal, remands for proceedings consistent with this opinion, and denies Everett’s motion to appoint counsel; no oral argument held.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Do Sydnoski qualify as a PLRA strike?	Everett argues Sydnoski does not count as a strike.	The district court counted Sydnoski as a strike.	Sydnoski does not qualify as a strike.
Does Wilkerson qualify as a PLRA strike, or must the court refrain from deciding on this point?	Everett contends Wilkerson was not a proper strike and that it should not count.	It was not clearly adjudicated whether Wilkerson constitutes a strike.	Court declines to decide; remand for possible reexamination if necessary.

Tolbert v. Stevenson, 635 F.3d 646 (4th Cir. 2011) (strike analysis for PLRA eligibility guidance)
Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775 (10th Cir. 1999) (affirmance on appeal of a dismissal counts as one strike only when merits-based)
Thompson v. DEA, 492 F.3d 428 (D.C. Cir. 2007) (same principle as Jennings re: appellate disposition counting as a strike)
Butler v. DOJ, 492 F.3d 440 (D.C. Cir. 2007) (distinguishes strikes where dismissal is merits-based from other dismissals)