Shaw v. Ingram

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 17, 2001
• Docket: 01-50330
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

NoS. 00-50508 & 01-50330 USDC No. MO-00-CV-2

OSCAR L. SHAW,

Plaintiff-Appellant,

versus

JOHN INGRAM; MATTHEW BLAIR; JOHN E. WESTBROOK; WELDON RALPH PETTY; GEORGE D. GILLES; VIVIAN WOOD; JERRY SHORTES; GARY PAINTER; MARK DETTMAN,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Texas -------------------- August 15, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

The motion filed by Oscar L. Shaw, Texas inmate # 646048,

directed to the Chief Judge, is construed as a motion to

reinstate the appeal in No. 00-50508 and is GRANTED. The appeal

in No. 00-50508 is consolidated with the instant appeal.

Shaw’s motion for leave to proceed in forma pauperis (“IFP”)

on appeal is GRANTED, and the case is remanded to the district

court for proceedings consistent with this opinion.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Nos. 00-50508 &01-50330 -2-

A civil action or appeal which is dismissed as frivolous,

malicious, or for failure to state a claim is considered a

“strike” under 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996).

The proceedings in “Shaw v. Pittman, 03780 (S.D. Tx. 1996)”

and in “Shaw v. Figueroa, 01958 (S.D. Tx. 1998)” did not result

in “strikes” under 28 U.S.C. § 1915(g). The dismissal in Pittman

was not on the grounds of maliciousness, frivolousness, or for

failure to state a claim; the district court dismissed the action

for failure to comply with a court order. On appeal, we remanded

the case in Figueroa. The proceedings in “Shaw v. Ingram, 00108

(W.D. Tx. 1996)” did not result in a strike because the Prison

Litigation Reform Act, of which 28 U.S.C. § 1915(g) is a part,

does not apply to habeas corpus petitions. See Carson v.

Johnson, 112 F.3d 818, 820 (5th Cir. 1997).

In “Shaw v. Painter, 00173 (W.D. Tx. 1992),” the district

court granted judgment as a matter of law on equal protection and

due process claims and dismissed as frivolous pursuant to 28

U.S.C. § 1915 an Eighth Amendment claim. It is not clear whether

the district court’s dismissal under 28 U.S.C. § 1915 referred to

the entire complaint or to the Eighth Amendment only. If the

entire complaint was dismissed as frivolous, then our affirmance

constituted one “strike” under 28 U.S.C. § 1915(g). See

Adepegba, 103 F.3d at 387. Upon remand, the district court shall

determine whether the proceedings in Painter resulted in a

“strike.” See Arvie v. LaStrapes, 106 F.3d 1230, 1232 (5th Cir.

1997) (remanding to determine if dismissal was a “strike”). Nos. 00-50508 &01-50330 -3-

The record provided no information concerning the

proceedings in “Shaw v. Blair, 00020 (W.D. Tx. 1993).” Upon

remand, the district court shall determine whether these

proceedings resulted in a “strike.” See Arvie, 106 F.3d at 1232.

Accordingly, the record does not support a finding that Shaw

has three strikes under 28 U.S.C. § 1915(g). The case is

therefore remanded for a determination whether Shaw has

accumulated any strikes under 28 U.S.C. § 1915(g).

IFP GRANTED; APPEALS CONSOLIDATED; REMANDED.