IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NoS. 00-50508 & 01-50330
USDC No. MO-00-CV-2
OSCAR L. SHAW,
Plaintiff-Appellant,
versus
JOHN INGRAM; MATTHEW BLAIR; JOHN E. WESTBROOK;
WELDON RALPH PETTY; GEORGE D. GILLES; VIVIAN WOOD;
JERRY SHORTES; GARY PAINTER; MARK DETTMAN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
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August 15, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
The motion filed by Oscar L. Shaw, Texas inmate # 646048,
directed to the Chief Judge, is construed as a motion to
reinstate the appeal in No. 00-50508 and is GRANTED. The appeal
in No. 00-50508 is consolidated with the instant appeal.
Shaw’s motion for leave to proceed in forma pauperis (“IFP”)
on appeal is GRANTED, and the case is remanded to the district
court for proceedings consistent with this opinion.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Nos. 00-50508 &01-50330
-2-
A civil action or appeal which is dismissed as frivolous,
malicious, or for failure to state a claim is considered a
“strike” under 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996).
The proceedings in “Shaw v. Pittman, 03780 (S.D. Tx. 1996)”
and in “Shaw v. Figueroa, 01958 (S.D. Tx. 1998)” did not result
in “strikes” under 28 U.S.C. § 1915(g). The dismissal in Pittman
was not on the grounds of maliciousness, frivolousness, or for
failure to state a claim; the district court dismissed the action
for failure to comply with a court order. On appeal, we remanded
the case in Figueroa. The proceedings in “Shaw v. Ingram, 00108
(W.D. Tx. 1996)” did not result in a strike because the Prison
Litigation Reform Act, of which 28 U.S.C. § 1915(g) is a part,
does not apply to habeas corpus petitions. See Carson v.
Johnson, 112 F.3d 818, 820 (5th Cir. 1997).
In “Shaw v. Painter, 00173 (W.D. Tx. 1992),” the district
court granted judgment as a matter of law on equal protection and
due process claims and dismissed as frivolous pursuant to 28
U.S.C. § 1915 an Eighth Amendment claim. It is not clear whether
the district court’s dismissal under 28 U.S.C. § 1915 referred to
the entire complaint or to the Eighth Amendment only. If the
entire complaint was dismissed as frivolous, then our affirmance
constituted one “strike” under 28 U.S.C. § 1915(g). See
Adepegba, 103 F.3d at 387. Upon remand, the district court shall
determine whether the proceedings in Painter resulted in a
“strike.” See Arvie v. LaStrapes, 106 F.3d 1230, 1232 (5th Cir.
1997) (remanding to determine if dismissal was a “strike”).
Nos. 00-50508 &01-50330
-3-
The record provided no information concerning the
proceedings in “Shaw v. Blair, 00020 (W.D. Tx. 1993).” Upon
remand, the district court shall determine whether these
proceedings resulted in a “strike.” See Arvie, 106 F.3d at 1232.
Accordingly, the record does not support a finding that Shaw
has three strikes under 28 U.S.C. § 1915(g). The case is
therefore remanded for a determination whether Shaw has
accumulated any strikes under 28 U.S.C. § 1915(g).
IFP GRANTED; APPEALS CONSOLIDATED; REMANDED.