Aguilar v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40087 Summary Calendar

TIMOTHY A. AGUILAR,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, Etc., ET AL.,

Defendants,

DONALD CHASTAIN, Coffield Unit,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:97-CV-188 - - - - - - - - - -

October 5, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Timothy A. Aguilar, #647166, appeals from the jury verdict

in favor of defendant Donald Chastain in his 42 U.S.C. § 1983

action. Aguilar sought to proceed in forma pauperis (IFP) on

appeal. The district court denied Aguilar’s motion to proceed

IFP, concluding that Aguilar was barred from proceeding IFP

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-40087 -2-

because he had three “strikes” under 28 U.S.C. § 1915(g) of the

Prison Litigation Reform Act of 1995 (PLRA).

The “three strikes provision” of § 1915(g) “prohibits a

prisoner from proceeding IFP if he has had three actions or

appeals dismissed for frivolousness, maliciousness, or failure to

state a claim.” Carson v. Johnson, 112 F.3d 818, 819 (5th Cir.

1997) (citing Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir.

1996)). A dismissal as frivolous of a complaint underlying an

appeal is not counted, for purposes of § 1915(g), against a

prisoner-litigant until the appellate process has been exhausted

or waived. See Adepegba, 103 F.3d at 387. The dismissal in the

district court as frivolous and the subsequent dismissal of that

appeal as frivolous counts as two “strikes.” Id.

The district court, relying on this court’s opinion in

Aguilar v. Rodriguez, No. 97-50667 (5th Cir. Sept. 3, 1998),

denied Aguilar’s motion to proceed IFP. In Rodriguez, this court

determined that Aguilar had three strikes for the purpose of

§ 1915(g).

Aguilar is no stranger to federal court, having appeared

seven times. Aguilar has had one prior civil rights action

dismissed as frivolous. See Aguilar v. Terrell, No. 6:91-CV-678

(E.D. Tex. Feb. 24, 1992). That dismissal counts as one strike.

Adepegba, 103 F.3d at 387. The dismissal as frivolous of

Aguilar’s appeal in Rodriguez counts as Aguilar’s second strike.

Id.

Given that Aguilar only had two strikes, this court’s

imposition of the three-strikes bar in Rodriguez was error. No. 99-40087 -3-

Accordingly, the district court’s determination that Aguilar was

barred from proceeding IFP on appeal because he had three

strikes, which was based on this court’s opinion in Rodriguez,

was also error. The judgment of the district court denying

Aguilar’s motion to proceed IFP on appeal is VACATED, and the

cause is REMANDED to the district court “to conduct any

applicable financial screening and assessment procedures required

under the PLRA.” Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

1997).

Aguilar is cautioned, however, that if this appeal is

determined to be frivolous, the three-strikes bar of § 1915(g)

will become effective. We urge him to review the issues that can

be presented in this appeal, following a jury verdict against

him, to determine whether this appeal is frivolous too.

VACATED AND REMANDED.