Donald X. Brown v. Larry Norris

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-1327 ___________ Donald X. Brown, * * Appellant, * * v. * Appeal from the United States * District Court for the Larry Norris, Director, Arkansas * Eastern District of Arkansas. epartment of Correction; Max * Mobley, Deputy Director, Arkansas * [UNPUBLISHED] Department of Correction; Dr. * Zoldessy, Arkansas Department of * Correction; John Byus, Medical * Administrator, Arkansas * Department of Correction; Linda * Kenyon, Infirmary Manager, * Wrightsville Unit, ADC; Brenda * Bearden, Ombudsman, Arkansas * Department of Correction; Brenda * Starr, Grievance Officer, Wrightsville * Unit, ADC; Nix, Dentist, Wrightsville * Unit, ADC; Dr. Coutts, Wrightsville * Unit, ADC; Dodge, Nurse, Wrightsville * Unit, ADC; Gibson, Nurse, * Wrightsville Unit, ADC; Wigington, * Nurse, Wrightsville Unit, ADC; * Arnold, Nurse, Wrightsville Unit, * ADC; Graves, Mail Room, Wrightsville * Unit, ADC; Ms. Young, Business * Manager, Wrightsville Unit, ADC; * Terry Clifton, Warden, Wrightsville * Unit, ADC; Eddie Cook, Assistant * Warden, Wrightsville Unit, ADC; Tim * Lowery, Furniture Supervisor, * Wrightsville Unit, ADC; Ray Hobbs, * Assistant Director, Arkansas * Department of Correction; Harmon, * Warden, Maximum Security Unit, * ADC; Tiffanye Compton, Grievance * Supervisor, Arkansas Department of * Correction; George Brewer, * Classification Administrator, Arkansas * Department of Correction; Speers, * Infirmary Manager, Maximum Security * Unit, ADC; Lt. Walton, Grimes Unit, * ADC; Ronald Dobbs, Assistant * Director, Arkansas Department of * Correction; David White, Warden, * Tucker Unit, ADC; Mary Brim, * Classification Officer, Tucker Unit, * ADC; Wimberly, Chief of Security, * Maximum Security Unit, ADC; Lt. * Bailey, Maximum Security Unit, ADC; * Lt. Ivey, Maximum Security Unit, * ADC; Sgt. Emerich, Grimes Unit, * ADC; Moten, Captain, Wrightsville * Unit, ADC; Stout, Chief of Security, * Wrightsville Unit, ADC; Sgt. Foote, * Wrightsville Unit, ADC; F. Alino, * CO-II, Wrightsville Unit, ADC; Linda * Murphy, Pen Store, Supervisor, * Wrightsville Unit, ADC; T. J. Garrett, * Grievance Officer, Wrightsville Unit, * ADC; Arline Towne, Mental Health, * Grimes Unit, ADC; Thompson, * Classification, Grimes Unit, ADC; Ms. * Cogshell, Mental Health, Cummins * Unit, ADC; Jerry Moore, Mental * Health, Cummins Unit, ADC; Smith, * CO2, Cummins Unit, ADC; L. Arnold, * -2- CO2, Cummins Unit, ADC, * * Appellees. * ___________ Submitted: April 4, 2006 Filed: April 12, 2006 ___________ Before WOLLMAN, BYE, and MELLOY, Circuit Judges. ___________ PER CURIAM. Arkansas inmate Donald X. Brown appeals the district court’s preservice dismissal without prejudice of his 42 U.S.C. § 1983 action as barred by the “three- strikes” provision of 28 U.S.C. § 1915(g). We grant Brown leave to proceed in forma pauperis, and we remand to the district court. We review de novo a district court’s determination of qualifying strikes. See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998). After reviewing the relevant documents from the cases the district court counted as strikes, we conclude that the two dismissals for failure to exhaust prison grievance procedures--Brown v. Jorgenson, No. 5:98CV00245, and Brown v. Mobley, No. 4:01CV00302--do not count as strikes. While we express no opinion as to whether Brown's other dismissals count as strikes under 28 U.S.C. § 1915(g), the record before us establishes Brown can have no more than two strikes. Accordingly, we remand to the district court for further proceedings. We deny Brown’s motion for appellate counsel. ______________________________ -3-