* District Judge of the Northern District of Texas, sitting by

designation. REVISED, March 16, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

NO. 97-30547

________________________

JOHN W. PATTON,

Plaintiff-Appellant,

versus

JEFFERSON CORRECTIONAL CENTER; HARRY LEE, Sheriff of Jefferson

Parish; ERNEST V. RICHARDS, IV, Judge, Division B;

KAREN MORGEN, Assistant District Attorney; PAT HAND, III,

Assistant District Attorney; and SUSAN D. RUSHING, Lt. Detective,

JPSO,

Defendants-Appellees.

_________________________________________________________________

Appeals from the United States District Court

for the Eastern District of Louisiana

________________________________________________________________

March 13, 1998

Before JONES an d SMITH, Circuit Judges, and FITZWATER, District

Judge. *

FITZWATER, District Judge:

We decide in this appeal whether dismissal of a 42 U.S.C. §

1983 action as frivolous is a strike within the meaning of the

“three strikes” provision of the Prison Litig ation Reform Act of

1995 (“PLRA”), 28 U.S.C. § 1915(g), when the suit is also construed

to allege a habeas claim and is in part dismissed without prejudice

for failure to exhaust state court remedies. Because we hold that2 We reserve the larger question whether, under the plain

language of § 1915(g), a frivolous habeas claim by itself counts as a strike for purposes of § 1915(g).

3 At the time he filed suit, Patton was an inmate confined at

the Je fferson Parish Correctional Center located in Gretna,

Louisiana.

- 2 - it is a countable strike, and because under this interpretation of

§ 1915(g) plaintiff had three strikes prior to filing this appeal,

we conclude that he is precluded from appealing in forma pauperis

(“IFP”), and we dismiss. 2

I

Plaintiff John W. Patton (“Patton”), Texas prisoner # 751103,

brought this § 1983 action, alleging that his constitutional rights

were violated when prison officials placed him in adm inistrative

segregat ion after they were advised that he had written a

threaten ing letter. 3 Patton sued six defendants, including a

sheriff, a state judge, two assistant district attorneys, and Susan

D. Rushing (“Detective Rushing”), a detective employed by the

Jefferson Parish Sheriff’s Office. He maintained that Detective

Rushing and another individual had fabrica t ed the threatening

correspondence for the purpose of interfering wit h child custody

proceedings in which he was involved. According to Patton, he

missed a court hearing because he had been placed in lockdown.

The district court dismissed Patton’s claims against all

defendants except Detective Rushing. The magistrate judge

recommended that the action against t he detective be

administr atively closed, without prejudice to reopening the case

following Patton’s release from Texas custody. The district judge4 W e remanded for reconsideration in light of Muhammad v.

Warden, Baltimore City Jail

, 849 F.2d 107, 112-13 (4th Cir. 1988),

in which the Fourth Circuit held that an indefinite stay should

only be considered as a last resort after all other alternatives,

such as securing the prisoner’s presence at trial and trial by

deposition, have been rejected. Id. , slip op. at 1.

- 3 - adopted the recommendat i on, stayed the case against Detective

Rushing, and administratively closed the action subject to Patton’s

right to reopen it within 30 days of his release. Patton appealed,

and we vacated and re manded the indefinite stay order for

reconside ration. P atton v. Jefferson Correctional Ctr.

, No. 95-

31055, 106 F.3d 397 (5th Cir. Jan. 13, 1997) (unpublished opinion)

(per curiam). 4

Following remand, the district court revoked Patton’s IFP

status. The court concluded that because Patton had filed at least

five actions that had been dismissed as frivolous, he was barred by

§ 1915(g) from proceeding IFP. The court held that Patton’s

complaint against Dete ctive Rushing would be dismissed with

prejudice unless Patton paid the appropriate filing fee within 30

days. Patton objected to the order and did not pay the fee. The

district court overruled Patton’s objections and dismissed his

lawsuit for failure to prosecute. Patton later moved for leave to

pay a partial filing fee and to continue his case in the district

court IFP. The district court construed the motion as a notice of

appeal and a motion to proceed IFP on appeal. Based on its prior

decision revoking Patton’s IFP status pursuant to the PLRA’s “three

strikes” provision, the court denied Patton’s requests for leave to

appeal IFP and to pay a partial filing fee.- 4 -

Patton appeals the orders dismissing his ac tion and denying

him leave to appeal. He also moves for leave to appeal IFP and to

appeal upon payment of a partial filing fee.

II

The PLRA contains a so-called “three strikes” provision, which

states:

In no event sha ll a prisoner bring a civil

action or appeal a judgment in a civil action

or proceeding under this section if the

prisoner ha s, on 3 or more prior occasions,

while incarcerated or detained in any facility, brought an action or appeal in a

court of the United States that was dismissed

on the grounds that it is frivolous,

malici o us, or fails to state a claim upon

which relief may be granted, unless the

prisoner is under imminent danger of serious

physical injury.

28 U.S.C. § 1915(g). We must decide whether Patton already had

three strikes against him prior to filing the instant appeal.

One of the necessa ry strikes is easily discernible from the

record. In Patton v. New Orleans Police Dep’t , Civil Action No.

93-3074 (E.D. La. Nov. 17, 1993), Patton alleged that he had been

the victim of an armed robbery. He sued two New Orleans police

officers pursuant to § 1983, alleging that they violated his rights

by failing to arrest the perpetrators. At the time he filed suit,

Patton was incarcerated in a county detention center in Texas.

Patton contended that the robbe rs attempted to intimidate him by

contacting one of the officers and advising him that Patton was on

probation in Texas. The officer then contacted Texas officials,

obtained a copy of an outstanding arrest warrant, and arrested

Patton when he appeared at the po lice station. Patton was also5 Bef o re passage of the PLRA, § 1915(d) authorized the

d ismissal of frivolous or malicious actions. C arson v. Johns on

, 112 F.3d 818, 819 n.1 (5th Cir. 1997).

- 5 - told that he had no right to lodge a criminal complaint because of

his probation and criminal record.

The district court dismissed the suit as frivolous pursuant to

former § 1915(d) 5 because the decision whether to file criminal

charges against an individual does not give rise to § 1983

liability and because Patton had not alleged a policy, pattern, or

practice of such inaction on the par t of New Orleans as a

municipality. Patton did not appeal the dismissal, and it became

a countable strike. S ee Adepegba v. Hammons

, 1 03 F.3d 383, 388

(5th Cir. 1996) (“We accordingly read dismissals under the [PLRA]

t o include only those for which an appeal has been exhaust ed or

waived.”). It is of no consequence that this strike (or, for that

matter, the others that we address in this opinion) occurred prior

to the effective date of the PLRA. S ee id. at 387 (applying “three

strikes” provision to pre-PLRA district court dismissal of § 1983

action as frivolous); accord Tierney v. Kupers

, 128 F.3d 1310, 1311

(9th Cir. 1997); Keener v. Pennsylvania Bd. of Probation & Parole

,

128 F.2d 143, 144 (3d Cir. 1997) (per curiam)(collecting cases).

III

We next consi der whether a § 1983 action that is in part

dismissed as frivolous, and is in part construed as a habeas claim,

which is dismissed without prejudice for failure to exhaust state

court remedies, is a countable strike.

A6 Following de novo review, the district judge adopted as his

own opinion the report and recommendation of the magistrate judge.

All references to the holdings of the district court are to rulings

of the magistrate judge adopted by the district judge.

7 This approach was proper. S ee Littles v. Board of Pardons &

Paroles Div.

, 68 F.3d 122, 123 (5th Cir. 1995)(per curiam)(holding

that even if complaint is subject to dismissal under Heck

, it

remains appropriate for district court to resolve question of

immunity before reaching Heck analy sis); K rueger v. Reimer

, 66

F.3d 75, 76 (5th Cir. 1995)(per curiam)(hol ding that despite

applicability of Heck

, district court may consider doctri ne of

absolute immunity as threshold matter in making § 1915(d)

frivolousness determination)

- 6 - In Patton v. Mamoulides

, Civil Action No. 94-3311-I (E.D. La.

Nov. 16, 1994), Patton brought a § 1983 action against a district

attorney and an assistant district attorney, alleging that they had

denied him his constitutional right to a speedy trial. The

district court 6 examined Patton’s complaint sua sponte to ascertain

whether it should be construed as a petition for habeas corpus.

Because Patton was atta cking the fact and length of his

confinement, the court concluded that he was seeking both habeas

and § 1983 relief. Based on its determination that Patton had not

e xhausted his state court remedies, the court concluded that his

habeas claim should be dismissed without prejudice for failure to

exhaust.

The court dismissed Patton’s § 1983 claim as frivolous

pursuant to former § 1915(d). Applying H eck v. Humphrey

, 512 U.S.

477 (1994), as construed in Boyd v. Biggers

, 31 F.3d 279 (5th Cir.

1994) (per curiam), the court held that the action must be

dismissed because defendants were entitled to absolute

pr osecutorial immunity. 7 “Plaintiff’s § 1983 complaint against- 7 -

defendants is frivolous under the broadest reading [o f his

complaint] since the allegations clearly lack an arguable basis in

law.” (footnote and citation omitted). Patton did not appeal the

dismissal.

In Patton v. Machado

, No. SA-95-CV-672 (W.D. Tex. 1995),

aff’d

, No. 95-50785, 82 F.3d 414 (5th Cir. Mar. 12,

1996)(unpublished opinion) (per curiam), Patton, at the time a

Texas state prisoner, brought a § 1983 suit against a state judge

and two assistant district attorneys. He had been convicted for

cocaine possession, for which he received deferred adjudicati on.

The State of Texas later moved to adjudicate Patton’s guilt after

he was convicted in Louisiana on a misdemeanor charge of stalking

and te lephone harassment. Following a hearing, the state court

granted the motion.

Whi le awaiting sentencing, Patton filed a § 1983 action in

federal court, seeking only injunctive relief in the form of a stay

of the criminal proceedings and the recusal of the state judge. In

response to a questionnaire, Patton alleged that the state judge

a nd prosecutors had conspired with non-parties to deprive him of

his rights. He also complained that the judge had violated his

rights by certain acts and omissions committed during or in

connection with the adjudication proceeding, and that the assistant

district attorneys had infringed his rights by several acts taken

in prosecuting him.

The magis t rate judge recommended dismissal of the claims

against the state judg e and prosecutors based on judicial and8 He recommended that the district judge impose court costs and

warn Patton that further frivolous lawsuits could result in more

severe monetary sanctions, an order barring P atton from filing

other lawsuits without obtaining leave from a district or circuit

judge, or a combination of these sanctions.

- 8 - prosecutorial immunity, respectively. Relying on H eck

, the

m a gistrate judge concluded that Patton could not collaterally

attack his conviction in a § 1983 action, and recommended that his

request for injunctive relief be denied.

The magistrate judge also recommended that Pa tton be

sanctioned for filing a frivolous suit. 8 Patton had previously

filed three civil rights suits in that federal court, two of which

he had voluntarily dismissed after the defendants answered, and a

third (against his probation officer) that the magistrate judge had

recommended be dismissed as frivolous. The magistrate judge noted

that he had already advised Patton that he could be sanctioned for

filing frivolous cases. The district judge adopted the

recommendation, dismissed the case as fri volous, and imposed the

suggested sanctions.

On appeal, we aff irmed the dismissal of the complaint as

frivolous, “although in part for reasons other than those stated by

the district court,” and affirmed the district court’s order

im posing sanctions. M achado

, 95-50785, slip op. at 2. We held

that because Patton’s complaint sought only injunctive relief

challenging the constitutionality of his confinement, it

necessarily was construed as a petition for habeas corpus, and that

Patton must exhaust stat e remedies before seeking federal court

relief. I d. W e concluded that “[t]he district court’s reliance on9 Section 1915(g) uses the term “prior occasions” rather than

“strikes.” We use the vernacular associated with this section of

the PLRA.

- 9 - the doctrine of absolute immunity was inapp ropriate because

Patton’s complaint had sought injunctive relief only, not damages.”

Id. Insofar as Patton’s complaint sought to set aside his

conviction or sentence, we modified the dismissal t o be without

prejudice based on his failure to exhaust state remedies. Id.

B

We hold that the dismissals of Patton’s § 1983 actions in

Mamoulides and Machado are strikes within the meaning of §

1915(g). 9

In Mamoulides Patton sued two prosecutors pursuant to § 1983,

contending they were liable for denying him his constitutional

right to a speedy trial. The district court dismissed the § 1983

claim with prejudi ce, finding it was frivolous based on

prosecutorial immunity. An unappealed dismissal as frivolous is

unquestionably a strike within the meaning of § 1915(g).

That the district court also construed Patton’s complaint as

seeking habeas relief, and then dismissed the clai m without

pr ejudice for failure to exhaust state court remedies, does not

alter this conc lusion. The court did not find that the habeas

claim was non -frivolous. It simply performed the required function

of determining whether Patton’s § 1983 complaint c ontained both

habeas and § 1983 claims, in which case “the district court should

separate the claims and decide the § 1983 claims.” O rellana v.

Kyle

, 65 F.3d 29, 31 (5th Cir. 1995)(per curiam)(addressing § 1983- 10 -

act ion challenging parole review procedures); s ee Cook v. Texas

Dep’t of Criminal Justice Transitional Planning Dep’t

, 37 F.3d 166,

1 68 (5th Cir. 1994) (noting distinction between claims that must

initially be pressed by writ of habeas corpus and those that may be

brought pursuant to § 1983); Serio v. Members of La. St. Bd. of

Pardons

, 821 F.2d 1112, 1119 (5th Cir. 1987) (holding that “in

instances in which a petition com bines claims that should be

asserted in habeas with claims that properly may be pursued as an

initial matter under § 1983, and the claims can be separated,

federal courts should do so, entertaining the § 1983 claims.”)

Although the dismissal without prejudice of the habeas claim does

not equate to a finding of frivolousness, it more closely parallels

such a conclusion than it does a determination of nonfrivolousness. It is a considered judgment that Patton asserted in

his § 1983 suit a habeas claim that was premature as a matter of

law.

The district court’s dismissal in Machado is also a strike.

We affirmed the dismissal of the § 1983 suit as frivolous and the

sanction order. “It is straightforward that affirmance of a

district court dismissal as frivolous counts as a single ‘strike.’”

Adepegba , 103 F.3d at 387.

That we modified the dismissal to be w ithout prejudice,

insofar as Patton’s complaint sought to set aside his conviction or

sentence, does not remove the § 1983 dismissal from the purview of

the PLRA’s “three strikes” provision. In M achado

, as in

Mamoulides , there was no determination that Patton’s habeas claim- 11 -

was colorable. Machado held that Patton’s complaint, in which he

sought only injunctive relief, necessarily was construed as a

petition for h abeas relief, that he must exhaust state remedies

before seeking such relief in federal court, and that insofar as

his complaint was an attempt to set aside his conviction or

sentence, the dismissal must be modified to b e without prejudice

based on failure to exhaust. M achado

, No. 95-50785, slip op. at 2.

Nor do we think it proper to excuse the Machado dismissal from

the “three strikes” bar based on the fact that we affirmed “in part

for reasons other than those stated by the district court,” and

held that the district court’s reliance on the doctrine of absolute

immunity was “inappropriate.” We explicitly affirmed the dismissal

of the § 1983 suit as frivolous. The suit was so frivolous that

despite our a doption of reasoning different from that of the

district court, and our modification of the dismissal to be in part

without prejudice, we affirmed the district court’s sanction order.

In any event, we did not reverse the district court’s determination

that Patton’s § 1983 action should be dismissed as frivolous. C f.

Adepegba

, 103 F.3d at 387 (holding that “reversal of a dismissal as

frivolous nullifies the ‘strike.’”).

C

There is no compelling reason to excuse Patton’s frivolous §

1983 actions in Mamoulides and Machado from the reach of the PLRA’s

“three strikes” proviso si mply because the cases included

unexhausted habeas claims . It is more faithful to the intent of

the PLRA to classify these dispositions as strikes. “Congress- 12 -

enacted PLRA with the principal purpose of deterring frivolous

prisoner litigation by instituting econo mic costs for prisoners

wishing to file suits.” L yon v. Krol

, 127 F.3d 763, 764 (8th Cir.

1997). Were we to hold otherwise, litigious prisoners could

immunize frivolous lawsuits from the “three strikes” barrier by the

simple expedient of pleading unexhausted habeas cl aims as

components of § 1983 suits. We doubt that Congress intended that

§ 1915(g) could be so facilely circumvented by the creative joinder

of actions.

IV

Patton maintains in his motion for leave to appeal that the

district court’s order denying him such leave violated §

1915(b)(4), which provides that “[i]n no event shall a prisoner be

prohibited from bringing a civil action or appealing a civil or

criminal judgment for the reason that the prisoner has no assets

and no means by which to pay the initial partial filing fee.” We

disagree. Section 1915(b)(4) pertains to the initial partial

filing fee requirement of § 1915(b)(1). Moreover, it is subject to

the “three strikes” rule of § 1915(g), which applies to § 1915 as

a whole.

In his supporting affid avit, Patton asserts that he is not

barred by § 1915(g) from bringing this appeal because “he has no

causes dismissed as frivolous since the passage of the PLRA.” This

argument is foreclosed by Adepegba

, which applies the PLRA to cases

dismissed prior to its enactment. Adepegba , 103 F.3d at 387. He

also points out that his present action challenges an- 13 -

unconstitutional lockdown. In C arson v. Johnson

, 112 F.3d 818 (5th

Cir. 1997), however, we held that the fact that the plaintiff was

challenging ad ministrative segregation did not entitle him to a

waiver of the filing fees. Id. at 821.

Patton has presented no basis to avoid the insuperable bar of

§ 1915(g). He may, of course, file appeals after paying the

required filing fee, as must other litigants. He may also litigate

actions that involve imminent danger of serious physi cal injury.

Adepegba , 103 F.3d at 388; Carson , 112 F.3d at 823.

* * *

Prior to the date Patton brought the p resent appeal, he

already had three strikes against him. We therefore DENY his

motion to proceed IFP and DISMISS the appeal.

DISMISSED.