IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 27, 2009
No. 08-40530
Summary Calendar Charles R. Fulbruge III
Clerk
DAVID JOEL DAVIS, also known as Thunder Cloud Davis
Plaintiff-Appellant
v.
CHERYL KYLE; KEN E KUYKENDALL; TITO ORIG; UNKNOWN
UNIVERSITY OF TEXAS MEDICAL BRANCH EMPLOYEE
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:08-CV-79
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
David Joel Davis, Texas prisoner # 582332, has filed a motion for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s denial of his
motion for leave to proceed IFP in his 42 U.S.C. § 1983 civil rights action. The
district court denied Davis leave to proceed IFP both in his civil action and on
appeal after concluding that Davis was barred from proceeding IFP under the
three-strikes provision in 28 U.S.C. § 1915(g). That provision prohibits a
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40530
prisoner from proceeding IFP if he has “on three prior occasions during
detention, had an action or appeal dismissed as frivolous, malicious, or for failing
to state a claim.” Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir. 1996).
The district court determined that Davis had earned strikes under
§ 1915(g) based on the dismissal, as frivolous, of Davis’s claims in Davis v.
Bryant, No. 6:03-CV-564, at 1 (E.D. Tex. March 17, 2004); the dismissal, as
frivolous, of Davis’s appeal in Davis v. Bryant, No. 04-40471, at 1-2 (5th Cir. Dec.
17, 2004); and the dismissal, as frivolous, of Davis’s claim in Davis v. Delarossa,
No. 3:06-CV-368, at 1 (S.D. Tex. Feb. 19, 2008). However, the district court
erred in attributing a strike to Davis for the district court’s dismissal of his claim
in Davis, No. 3:06-CV-368, at 1. Davis’s appeal from that decision, Davis v.
Delarosa, No. 08-41329, is still pending in this court. A dismissal as frivolous
of a complaint may not be counted as a strike for purposes of § 1915(g) until the
appellate process has been exhausted or waived. Adepegba, 103 F.3d at 387.
We have not identified any other actions and appeals in which Davis has
accumulated a strike for purposes of § 1915(g). As Davis has only two strikes
under § 1915(g), the district court erred in determining that he was barred under
that provision from proceeding IFP both in the district court and on appeal.
Accordingly, we grant Davis leave to proceed IFP on appeal and assess an
appellate filing fee in accordance with § 1915(b)(1). We direct the district court
to calculate Davis’s initial partial filing fee and to order collection of that fee and
the remaining installments from him in accordance with § 1915(b). Moreover,
we vacate the denial of Davis’s motion to proceed IFP in the district court, and
remand Davis’s case for further proceedings.
IFP ON APPEAL GRANTED; APPELLATE FILING FEE ASSESSED;
DENIAL OF MOTION TO PROCEED IFP IN THE DISTRICT COURT
VACATED; CASE REMANDED.
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