Frank R. Owens v. Verlyn Isaac

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3007
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Frank R. Owens, *
*
Appellant, *
*
v. *
*
Verlyn Isaac; Jean Even; C/O Phillip; *
Mike Bickford; William Soupene, *
*
Appellees. *

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Appeals from the United States
No. 07-1056 District Court for the
____________ Northern District of Iowa.

Frank R. Owens, * [PUBLISHED]
*
Appellant, *
*
v. *
*
Kevin Hagemann; Marilee S. *
Giegerich; K. Clark; Steven Wendl; *
Jake Noonan; Curtis Mayo; Stephen *
Salviati; William Soupene; Tyrone *
Bontrager; Raymond Turano; Samuel *
Fierro; Scott Collins; Jean Even; Larry *
J. Theilen; Lt. Paulson; Lt. Pasker; *
C/O Neiers; Harry Brown; Jean Hall; *
David Walderbach; Randy *
Oldenburger; Tom Luensman; Dan *
Dietiker; Steve Lynch; Michael *
Bickford; Dr. Durga; Jerry Connolly; *
William Rindy; C/O Baker; Kathy *
Condon, *
*
Appellees. *
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Submitted: May 30, 2007
Filed: June 6, 2007
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Before WOLLMAN, RILEY, and BENTON, Circuit Judges.
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PER CURIAM.

In the 42 U.S.C. § 1983 action underlying appeal No. 06-3007, Iowa inmate
Frank R. Owens sought to proceed in forma pauperis (IFP). He filed several motions
to amend, along with proposed amendments that added claims and allegations against
additional prison-employee defendants. The district court granted leave to amend, but
denied IFP status under 28 U.S.C. § 1915(g) and dismissed the complaint, concluding
that Owens had three “strikes,” and that his allegations did not qualify under section
1915(g)’s imminent-danger exception. The district court identified as “strikes” two
of Owens’s previously dismissed cases, and counted as a third strike this court’s
summary affirmance of the second dismissal.

After the first lawsuit was dismissed and the dismissal was appealed, Owens
filed the section 1983 complaint and amended complaint underlying appeal No. 07-
1056, again seeking to proceed IFP. He named many of the same defendants, and
made many of the same claims and allegations as in his previous lawsuit. His new
allegations primarily focused on his claim that he was in imminent danger of serious
physical injury, but the new allegations also arose from those he had made in his

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previous lawsuit. Shortly after filing his lawsuit, Owens notified the court he had
been transferred to another prison. The district court denied IFP status, relying on its
determination in the first lawsuit that Owens was three-strikes barred. The court
further found that Owens did not qualify under section 1915(g)’s imminent-danger
exception, noting that one of his alleged concerns about his safety was moot, given his
transfer to another prison.

The three-strikes determination is relevant to both appeals, and thus we grant
Owens’s motion to consolidate the appeals. We have reviewed docket sheets and
orders in the cases the district court listed as strikes in the first case. See Andrews v.
King, 398 F.3d 1113, 1118 (9th Cir. 2005) (reviewing de novo district court’s
interpretation and application of § 1915(g)). The first case was dismissed without
prejudice for failure to exhaust administrative remedies; such a dismissal is not a
strike under section 1915(g). See Newingham v. Westbrook, 140 Fed. Appx. 634 (8th
Cir. 2005) (unpublished per curiam); see also Snider v. Melindez, 199 F.3d 108, 112
(2d Cir. 1999). The dismissal of the second case as frivolous under 28 U.S.C.
§ 1915A(b) counted as a strike, but this court’s summary affirmance under Eighth
Circuit Rule 47A(a) did not. See 28 U.S.C. § 1915(g) (describing a strike as “an
action or appeal . . . that was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim”); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996) (only dismissal of appeal as frivolous counts as strike, whereas affirmance of
dismissal for frivolousness does not); Jennings v. Natrona County Det. Ctr. Med.
Facility, 175 F. 3d 775, 780 (10th Cir. 1999) (same). Because we find that Owens has
only one strike, we grant his motion for leave to proceed IFP in both appeals, leaving
fee-collection details to the district court, see Henderson v. Norris, 129 F.3d 481, 484-
85 (8th Cir. 1997) (per curiam). Neither case was subject to dismissal under section
1915(g).

We note that, in a footnote in the case underlying appeal No. 06-3007, the
district court also expressed the view that Owens’s amended complaint was subject

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to dismissal under 28 U.S.C. § 1915A, because it was frivolous or malicious or failed
to state a claim. Reading the original complaint and amendments together as we
believe Owens intended, we disagree. See Cooper v. Schriro, 189 F.3d 781, 783 (8th
Cir. 1999) (per curiam) (liberally construing original complaint, after observing that
amended complaint standing alone failed to state a claim but that plaintiff clearly
intended to have both complaints read together). At least some of Owens’s allegations
appear to state claims against some defendants. See, e.g., Cody v. Weber, 256 F.3d
765, 771 (8th Cir. 2001) (conduct undertaken in retaliation for inmate’s exercise of
constitutionally protected right is actionable, even if conduct would have been proper
if motivated by different reason); Powells v. Minnehaha, County Sheriff Dep’t, 198
F.3d 711, 712 (8th Cir. 1999) (per curiam) (inmate stated constitutional claim by
alleging officers opened his legal mail when he was not present).

While in the lawsuit underlying appeal No. 07-1056 Owens raised new claims
about being placed in danger, it appears he did so in order to qualify under section
1915(g)’s imminent-danger exception for purposes of pursuing the claims he raised
in the first lawsuit. We thus recommend that, on remand, the district court consolidate
the two lawsuits. Given Owens’s transfer to another prison, we agree with the district
court’s implicit finding that his requests for injunctive relief arising from any
conditions-of-confinement claims are now moot. See Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985) (claim for injunctive relief to improve prison conditions
was moot when inmate was transferred and no longer subject to those conditions).

Accordingly, we reverse both dismissals and remand for further proceedings.
We deny Owens’s motion for a status hearing (No. 06-3007), and his motions setting
forth further information for the court to consider (No. 07-1056).
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