Eleventh Circuit Clarifies PLRA “Three-Strikes”: Jurisdictional Dismissals and Prior § 1915(g) Dismissals Do Not Count Absent an Express Failure-to-State-a-Claim Basis

Case: George Walter Brewster, III v. Michael Nail, et al.

Court: United States Court of Appeals for the Eleventh Circuit (Non-Argument Calendar)

Date: September 10, 2025

Panel: Lagoa, Brasher, and Wilson, Circuit Judges (per curiam)

Disposition: Reversed and remanded; motion to supplement the record granted

Publication Status: Not for publication (non-precedential, but persuasive within the Eleventh Circuit)

Introduction

This appeal arises from the district court’s denial of in forma pauperis (IFP) status to a state prisoner, George Walter Brewster, III, under the Prison Litigation Reform Act (PLRA) “three-strikes” provision, 28 U.S.C. § 1915(g). Brewster, proceeding pro se, filed a 42 U.S.C. § 1983 action alleging multiple constitutional and statutory violations stemming from his June 2024 arrest for a probation violation and subsequent confinement, including claims of overcrowding, denial of a bail hearing, false imprisonment, and interference with notarization of documents related to habeas filings. The district court concluded Brewster had accumulated at least three “strikes” from prior federal cases and dismissed his complaint without prejudice for failure to pay the filing fee.

On appeal, Brewster challenged the district court’s “strike” determinations, arguing that several of the referenced dismissals were on grounds outside the exclusive PLRA strike categories. The Eleventh Circuit agreed. Applying its decisions in Daker v. Commissioner, Georgia Department of Corrections and Wells v. Brown, the court held that at least two of the four dismissals identified by the district court could not be counted as strikes: one was a dismissal under § 1915(g) itself, and another was a jurisdictional dismissal. Because fewer than three valid strikes existed, the court reversed and remanded.

Summary of the Opinion

The Eleventh Circuit reversed the district court’s denial of IFP status and dismissal of Brewster’s complaint. The panel held:

• Under 28 U.S.C. § 1915(g), only dismissals on the grounds that the action is “frivolous, malicious, or fails to state a claim” qualify as strikes. Dismissals on other grounds do not count.
• A prior action dismissed under § 1915(g) (the three-strikes rule itself) is not a strike because the statute’s enumerated grounds are exclusive (applying Daker’s negative-implication canon).
• A dismissal for lack of subject-matter jurisdiction is not a strike.
• Applying these rules, two of the four prior cases relied on by the district court—Brewster v. Department of Community Supervision (dismissed under § 1915(g)) and Brewster v. American International Movers, Inc. (dismissed for lack of jurisdiction)—do not qualify as strikes.
• Because the district court identified only four cases total, and at least two are not strikes, Brewster did not have three strikes. The court therefore reversed and remanded without reaching the remaining two cases or the “imminent danger” exception (which Brewster did not brief on appeal and thus waived).
• The panel granted Brewster’s motion to supplement the record with filings tied to the four referenced federal cases and certain state criminal matters, finding supplementation would promote judicial economy and informed decision-making.

Analysis

Precedents Cited and Their Influence

• Daker v. Commissioner, Georgia Dep’t of Corrections, 820 F.3d 1278 (11th Cir. 2016): The court emphasized Daker’s use of the negative-implication canon: because § 1915(g) lists only three qualifying grounds—frivolous, malicious, or failure to state a claim—dismissals for any other reason cannot be strikes. That principle directly controlled two prior dismissals counted against Brewster (a § 1915(g) dismissal and a jurisdictional dismissal), neither of which matched the statute’s enumerated grounds.
• Wells v. Brown, 58 F.4th 1347 (11th Cir. 2023): Wells supplies the operational test for whether a dismissal is “for failure to state a claim.” The court reiterated that:
  • If an affirmative defense or other ground for dismissal appears on the face of the complaint, the dismissal may be for failure to state a claim (even without “magic words”).
  • But the dismissing court must give some “express statement” indicating the case was dismissed because it failed to state a claim.
  • Mixed dismissals—where some claims are dismissed for non-strike reasons (e.g., jurisdiction) and others for failure to state a claim—do not count as strikes because § 1915(g) requires the “action,” not merely a claim, to be dismissed on enumerated grounds.
  • Dismissals for lack of jurisdiction are not strikes.
  The panel relied on Wells to classify American International Movers as jurisdictional (and therefore not a strike) and to insist upon an express failure-to-state-a-claim basis before a prior dismissal can be counted.
• Mitchell v. Nobles, 873 F.3d 869 (11th Cir. 2017): Provided the standard of review—de novo—for the district court’s application of the PLRA three-strikes rule.
• United States v. Silvestri, 409 F.3d 1311 (11th Cir. 2005): Cited for the principle that issues not raised in an appellant’s initial brief are deemed waived; the panel declined to address the “imminent danger” exception for that reason.
• Young v. City of Augusta, Ga. Through DeVaney, 59 F.3d 1160 (11th Cir. 1995): Cited to justify supplementation of the appellate record on efficiency and decision-making grounds.

Legal Reasoning

Section 1915(g) restricts IFP privileges to prisoners who have not previously had “on 3 or more prior occasions” an “action or appeal” dismissed “on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” The court underscored two interpretive guideposts:

• Enumerated grounds are exclusive. Applying Daker’s negative-implication canon, the statute’s three categories are the only permissible bases for counting a dismissal as a strike. Therefore, dismissals under the PLRA three-strikes rule itself, or for lack of subject-matter jurisdiction, fall outside the statute and cannot be strikes.
• Express failure-to-state-a-claim characterization. Under Wells, a dismissal can qualify as “failure to state a claim” even without specific phrasing, but the order must contain some explicit indication that the ground was failure to state a claim (including where an affirmative defense appears on the complaint’s face). Conversely, when a court dismisses for lack of jurisdiction—or the docket reflects that basis—that disposition cannot be repurposed as a failure-to-state-a-claim strike.

Applying those rules, the panel reviewed the four dismissals identified by the district court:

• Brewster v. Department of Community Supervision (M.D. Ga. 2023): Dismissed under § 1915(g) (three-strikes). No discussion of merits. Not a strike because § 1915(g) is not one of the enumerated grounds.
• Brewster v. American International Movers, Inc. (M.D. Ga. 2020): Dismissed for lack of subject-matter jurisdiction, as reflected in the court’s reasoning and the docket. Not a strike under Wells.
• Brewster v. District Attorney’s Office (M.D. Ga. 2020) and Brewster v. Turner (M.D. Ga. 2021): The district court had treated both as failures to state a claim (with Turner allegedly resting on absolute judicial immunity, which the district court equated to a failure to state a claim). The Eleventh Circuit found it unnecessary to reach these two because, even assuming both were strikes, the other two were not, leaving Brewster with fewer than three total.

Because at least two of the four prior dismissals were not strikes, Brewster could not be barred from IFP status under § 1915(g). The court reversed and remanded for further proceedings, also granting Brewster’s motion to supplement the record to ensure an accurate strikes analysis.

Impact

This unpublished per curiam decision reinforces and operationalizes recent Eleventh Circuit doctrine on PLRA “three-strikes” counting. Its practical effects include:

• Closer scrutiny of prior dismissals: District courts in the Eleventh Circuit must carefully parse the actual grounds of earlier dismissals. Labels matter. A dismissal under § 1915(g) or for lack of subject-matter jurisdiction cannot be counted as a strike.
• Demand for clarity in dismissal orders: To facilitate accurate strikes counting, district courts are encouraged—consistent with Wells—to include an “express statement” when dismissals rest on failure to state a claim. Ambiguous formulations that mix jurisdictional and merits concepts may complicate future PLRA analyses.
• Mixed dismissals are off-limits as strikes: Where an action is dismissed on multiple grounds, only an “all claims, entire action” failure-to-state/frivolous/malicious dismissal qualifies. This may reduce over-counting of strikes in multi-claim suits.
• Appellate record supplementation: The decision signals receptivity to supplementing the record to ensure accurate strikes determinations, promoting judicial economy and more reliable outcomes.
• Access-to-courts implications: Prisoners previously blocked by miscounted strikes may get renewed access to IFP status. District courts retain robust screening under 28 U.S.C. §§ 1915(e)(2) and 1915A, but the front-end categorical bar of § 1915(g) will be more faithfully limited.

Although non-precedential, this decision aligns with—and thus strengthens the persuasive force of—Wells and Daker in the Eleventh Circuit’s approach to PLRA strike counting. It will likely be cited for its straightforward application of those cases to common dismissal scenarios.

Complex Concepts Simplified

• PLRA “Three-Strikes” Rule (28 U.S.C. § 1915(g)): A prisoner who has had three or more prior “actions or appeals” dismissed as frivolous, malicious, or for failure to state a claim cannot proceed IFP in a new case unless he shows imminent danger of serious physical injury. Only those three listed grounds count; other reasons for dismissal do not.
• In Forma Pauperis (IFP): A status that allows a litigant who cannot afford filing fees to proceed without prepayment. Prisoners granted IFP typically still pay the fee over time through installment payments taken from prison accounts.
• Failure to State a Claim (Rule 12(b)(6)-type concept): The complaint does not allege facts that, if true, would entitle the plaintiff to legal relief. Under Wells, a dismissal counts as a “failure to state a claim” strike only if the court’s order makes it expressly clear that is the basis (even without “magic words”).
• Jurisdictional Dismissal: The court lacks the power to hear the case (for example, no federal question or diversity jurisdiction). This is not a judgment on the merits, and under Wells, it cannot be a PLRA strike.
• Negative-Implication Canon: A principle of statutory interpretation: when a statute lists specific items (frivolous, malicious, failure to state a claim), courts infer that items not listed (e.g., lack of jurisdiction, § 1915(g) dismissal) are excluded.
• Mixed Dismissal: When a court dismisses different parts of the same action for different reasons (e.g., some claims for lack of jurisdiction, others for failure to state a claim). Under Wells, mixed dismissals are not strikes because § 1915(g) requires the entire action to be dismissed on an enumerated ground.
• Absolute Judicial Immunity: Judges are immune from damages suits for judicial acts within their jurisdiction. Some courts treat a dismissal on absolute judicial immunity grounds as akin to failure to state a claim; the Eleventh Circuit did not reach that issue here.
• Imminent Danger Exception: Even with three strikes, a prisoner may proceed IFP if he is under imminent danger of serious physical injury. The issue was waived on appeal in this case because Brewster did not brief it.

Practical Guidance and Takeaways

• For district courts:
  • When screening IFP applications under § 1915(g), verify the precise grounds of prior dismissals. Consult the actual orders and docket entries.
  • Articulate clearly when a dismissal is for failure to state a claim to avoid ambiguity in future strikes analyses.
  • Remember that dismissals for lack of jurisdiction or under § 1915(g) itself are not strikes; mixed dismissals do not qualify either.
• For prisoners and pro se litigants:
  • When challenging a three-strikes finding, cite Daker and Wells. Emphasize that only the three enumerated grounds count and that an express failure-to-state-a-claim basis must appear in the prior order.
  • If applicable, raise the “imminent danger” exception in your opening brief to avoid waiver.
  • Provide the appellate court with copies of prior dismissal orders and docket notations; move to supplement the record if needed.
• For defense counsel:
  • When asserting a three-strikes bar, ensure each cited dismissal meets § 1915(g)’s enumerated grounds and applies to the “action,” not just a claim.
  • Anticipate challenges to dismissals with ambiguous phrasing or mixed bases; consider securing records that demonstrate an express failure-to-state-a-claim ground if it exists.

Conclusion

The Eleventh Circuit’s decision in Brewster v. Nail clarifies the contours of the PLRA three-strikes calculus by faithfully applying Daker and Wells. Two core points emerge: (1) dismissals under § 1915(g) and dismissals for lack of subject-matter jurisdiction do not count as strikes because § 1915(g)’s grounds are exclusive; and (2) a dismissal qualifies as a “failure to state a claim” strike only where the dismissing court expressly indicates that basis, and mixed dismissals do not count. The ruling emphasizes precision and transparency in characterizing dismissal grounds and ensures that § 1915(g)’s gatekeeping function is not expanded beyond its text.

Although unpublished, the opinion is a cogent application of established Eleventh Circuit precedent, likely to be cited persuasively in future three-strikes disputes. On remand, Brewster may proceed without the categorical bar of § 1915(g), though his complaint remains subject to screening under §§ 1915(e)(2) and 1915A. More broadly, the decision promotes accurate and fair counting of strikes, preserving prisoner access to the courts consistent with the PLRA’s statutory design.