### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 11123

BILLY FRANK HALE , Plaintiff

- Appellant

v. BRYAN COLLIER; MAJOR RICHARD WATHEN; TOMMY NORWOOD; FRANKIE HAYNES; JOSEPH EASTRIDG E , Defendant s
- Appellee s

Appeal s 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 f or 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 th e

* 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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. United States Court of Appeals Fifth Circuit 

### FILED June 7, 2017 Lyle W. Cayce Clerk Case: 16-11123 Document: 00514024093 Page: 1 Date Filed: 06/07/2017No. 16

- 11123

2 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 app eal 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 reques t “must be directed solely to the trial court’s reasons for the certification decision.” I d

. 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 fail ure 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, w e 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
2057 2 49 , *1 (5th Cir. May 15, 2017). A claim dismissed on summary judgment should not be awarded a strike because it is “not dismis sed 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 Case: 16-11123 Document: 00514024093 Page: 2 Date Filed: 06/07/2017No. 16

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3 should not have been counted as a strike. The district court counte d 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

. Case: 16-11123 Document: 00514024093 Page: 3 Date Filed: 06/07/2017