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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40530

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

March 27, 2009

Charles R. Fulbruge III

Clerk
No. 08-40530

2

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.