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, 318 F. App'x 269

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 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. Dela-rossa, 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. 08-11329, 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. 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.