United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 25, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-20088
Summary Calendar
GORDON RAY SIMMONDS,
Plaintiff-Appellant,
versus
CLAVIN L. BLAKE, JR., Sergeant; MAJOR RICHARD GUNNELS;
JAMES L. JONES; CHARLES T. O’REILLY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-4254
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gordon Ray Simmonds, Texas prisoner # 932489, has filed a
motion to proceed in forma pauperis (IFP) in the appeal of the
dismissal of his civil rights complaint he filed pursuant to
42 U.S.C. § 1983. The district court dismissed the complaint
without prejudice after it determined that Simmonds had three
“strikes” under 28 U.S.C. § 1915(g). The district court
identified three lawsuits filed by Simmonds that were dismissed
*
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this opinion should not be published and is not precedent except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.
No. 06-20088
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as frivolous, malicious, or for failure to state a claim.
Simmonds contends that one of the identified dismissals,
specifically Simmonds v. United States Court of Appeals,
No. 2:04-CV-3000 (E.D. La. Nov. 19, 2004), should not have been
considered as a strike for purposes of § 1915(g) because it was
in the nature of a “habeas petition.” He also contends that the
case should not have been counted as a strike because he is
currently appealing to this court the district court’s dismissal
of that case.
In Simmonds v. United States Court of Appeals, No. 2:04-CV-
3000 (E.D. La. Nov. 19, 2004), the district court dismissed
Simmonds’s complaint with prejudice for failure to state a claim
on which relief may be granted, pursuant to § 1915(e)(2), and
denied him leave to proceed IFP on appeal. In Simmonds v. United
States Court of Appeals, No. 05-30018 (5th Cir. Apr. 28, 2006)
(unpublished), this court denied Simmonds leave to proceed IFP
and dismissed his appeal as frivolous. However, the appellate
process in that case was not exhausted prior to Simmonds filing
of his notice of appeal in the instant case. Accordingly, the
district court erred in counting that case as a strike and in
determining that Simmonds was barred under § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Accordingly, IT IS ORDERED that Simmonds’s motion to proceed
IFP is GRANTED. IT IS FURTHER ORDERED that the district court’s
dismissal of his § 1983 complaint is VACATED and the case is
No. 06-20088
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REMANDED for further proceedings.