Case: 16-11123 Document: 00514024093 Page: 1 Date Filed: 06/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11123 FILED
June 7, 2017
Lyle W. Cayce
BILLY FRANK HALE, Clerk
Plaintiff-Appellant
v.
BRYAN COLLIER; MAJOR RICHARD WATHEN; TOMMY NORWOOD;
FRANKIE HAYNES; JOSEPH EASTRIDGE,
Defendants-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 7:16-CV-19
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Billy Frank Hale, Texas prisoner # 693364 filed a state court complaint
alleging that several defendants employed by the Texas Department of
Criminal Justice failed to provide proper medical care for a back injury Hale
suffered while working. The defendants removed the case to federal court,
under 28 U.S.C. § 1331 and then moved to dismiss the action for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). Without discussing the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-11123 Document: 00514024093 Page: 2 Date Filed: 06/07/2017
No. 16-11123
defendants’ motions to dismiss, the district court dismissed the case on the
ground that Hale was barred from proceeding in forma pauperis (IFP) in
federal court under the three strikes bar of 28 U.S.C. § 1915(g). The court also
denied Hale leave to appeal IFP and certified that the appeal was not in good
faith.
By now moving this court for leave to appeal IFP, Hale challenges the
certification that his appeal is not in good faith. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). His IFP request “must be directed solely to the trial
court’s reasons for the certification decision.” Id.
Under the so-called three strikes bar, a prisoner may not proceed IFP in
a civil action, or appeal a civil judgment, if he has, on three or more prior
occasions while incarcerated, “brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted unless [he] is under
imminent danger of serious physical injury.” § 1915(g).
The district court’s determination that Hale has three strikes under
§ 1915(g) was based in part on a strike given in Hale v. Williams, No. 4:95-CV-
5021 (S.D. Tex. Sep. 14, 1998), in which some claims were dismissed for failure
to state a claim, while others were dismissed on summary judgment. At the
time of the judgment, unpublished authority supported giving a strike when
only some claims were dismissed under § 1915(g). However, after this appeal
was lodged, we held that “a strike does not issue when only some claims are
dismissed on section 1915(g) grounds.” Brown v. Megg, __F.3d__, 2017 WL
2057249, *1 (5th Cir. May 15, 2017). A claim dismissed on summary judgment
should not be awarded a strike because it is “not dismissed on the grounds that
it is frivolous, malicious, or fails to state a claim.” Id. at *4 (internal quotation
marks and citation omitted). Accordingly, the dismissal in No. 4:95-CV-5021
2
Case: 16-11123 Document: 00514024093 Page: 3 Date Filed: 06/07/2017
No. 16-11123
should not have been counted as a strike. The district court counted only two
other strikes, and we have discovered no other rulings against Hale that would
count as a third strike. The dismissal based on the § 1915(g) bar was therefore
incorrect
Accordingly, the motion for leave to proceed IFP on appeal is GRANTED.
The district court’s judgment is VACATED, and the case is REMANDED for
further consideration consistent with this opinion. Hale’s motion for a stay,
injunction, or temporary restraining order pending appeal is DENIED.
3