                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          July 31, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

 LO U IS JOSEPH M A LEK ,

          Plaintiff - Appellant,

 v.
                                                          No. 05-4134
 M ARY AN N REDING; M ARY                                     (Utah)
 B RO CK BR AD ER ; JU N E H IN KLEY;             (D.Ct. No. 2:05-CV-322-PGC)
 JO H N G REEN ; PA U L LA RSEN;
 DONALD E. BLANCHARD; CURTIS
 GARNER,

          Defendants - Appellees.
                         ____________________________

                              OR D ER AND JUDGM ENT *


Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Louis Joseph M alek, a state prisoner proceeding pro se, 1 filed a prisoner

complaint pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional

rights arising from his continuing incarceration due to procedural deficiencies in

the determination of the proper length of his sentence. The district court

dismissed the complaint under 28 U.S.C. § 1915(g), finding M alek had three prior

strikes and thus could not proceed without paying the filing fee. M alek appealed,

and seeks leave to proceed in form a pauperis (ifp). See 28 U.S.C. § 1915(a)(1);

F ED . R. A PP . P. 24(a)(5). Exercising jurisdiction under 28 U.S.C. § 1291, we

GRANT M alek’s motion to proceed ifp and REVERSE the judgment of the

district court.

                                      Background

       In M ay 1977, M alek was sentenced in state court to one to fifteen years

im prisonment for manslaughter. He was reincarcerated in M arch 1983 on two

counts of aggravated robbery and attempted murder, for which offenses he was

sentenced to five years to life with additional consecutive sentences of two to six

years for firearm enhancements. M alek v. Haun, 26 F.3d 1013, 1015 (10th Cir.

1994) (M alek I). M alek has filed a number of actions challenging his

incarceration. 2 In the current case, M alek contends his constitutional rights under


       1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
       2
        See D.C. 2:93-cv-00612 (Utah) (42 U.S.C. § 1983 complaint dismissed as
frivolous - see order of Dec. 22, 1993), aff’d Malek I; D.C. 2:94-cv-00800 (Utah)

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the Eighth Amendment have been violated by his continued incarceration past the

expiration of his original sentence for manslaughter, and his rights under the

Fourteenth Amendment violated by inadequate parole board procedures. The

district court found M alek had “filed several previous civil actions with the

federal courts, some of which [had] been dismissed as frivolous or failing to state

a claim.” (R. Doc. 8 at 1.) The court listed M alek v. Wheeler, D.C. 2:03-cv-1055

(U tah M ay 11, 2004), M alek v. Haun, D.C. 2:93-cv-612 (Utah Dec. 22, 1993), and

our affirmance in M alek v. Haun, 26 F.3d 1013 (10th Cir. 1994). The court then

dismissed M alek’s complaint under 28 U.S.C. § 1915(g), ruling he could not

proceed without paying the filing fee. On appeal, M alek challenges, inter alia,

the district court’s determination that he has three prior strikes, requiring

dismissal of his complaint. Our review of the cases upon which the district court

relied demonstrates M alek had only one prior strike at the time he filed this

complaint, and thus the dismissal must be reversed. 3

                                      Discussion



(summary judgment granted for defendants in civil case - order of Oct. 21, 1997); D.C.
2:97-cv-00244 (Utah) (petition for writ of habeas corpus dismissed Nov. 9, 1998); D.C.
2:03-cv-00461 (Utah) (§ 1983 complaint dismissed on May 2, 2005); D.C. 2:03-cv-01055
(Utah) (§ 1983 complaint dismissed May 11, 2004); D.C. 2:04-cv-01062 (Utah) (petition
for writ of habeas corpus).
      3
         Contemporaneous with this opinion, we are issuing a decision in Malek v.
Brockbrader, et al., No. 05-4118, dismissing his appeal as frivolous. See D.C. 2:03-cv-
00461 (Utah) (§ 1983 complaint dismissed on May 2, 2005). Malek incurred two strikes
in that case, one for the district court dismissal and one for our dismissal.

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       Section 1915(g), the “three strikes” provision of the ifp statute, provides:

       In no event shall a prisoner bring a civil action or appeal a judgment
       in a civil action or proceeding under this section if the prisoner has,
       on 3 or more prior occasions, while incarcerated or detained in any
       facility, 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 the
       prisoner is under imminent danger of serious physical injury.

       In Jennings v. Natrona County Detention Center M edical Facility, we

reviewed the rules governing qualifying dismissals - strikes - under § 1915(g) as

follow s:

       (1) Habeas corpus and 28 U.S.C. § 2255 proceedings are not civil
       actions under 28 U.S.C. § 1915. Hence, the dismissal of a habeas
       corpus or § 2255 petition does not count as a strike for purposes of
       limiting in forma pauperis status under § 1915(g).

       (2) A district court dismissal under 28 U.S.C. § 1915(e)(2)(B) does
       not count as a strike until after the litigant has exhausted or waived
       his opportunity to appeal.

       (3) If we affirm a district court dismissal under 28 U.S.C. §
       1915(e)(2)(B), the district court dismissal then counts as a single
       strike. (Under the plain language of the statute, only a dismissal may
       count as [a] strike, not the affirmance of an earlier decision to
       dismiss.)

       (4) If we reverse a district court dismissal under 28 U.S.C. §
       1915(e)(2)(B), the district court dismissal does not count as a strike.

       (5) If we dismiss as frivolous the appeal of an action the district
       court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals
       count as strikes.

       (6) If we dismiss as frivolous a prisoner's appeal of an action for
       which the district court entered judgment for defendant, the dismissal
       of the appeal counts as one strike.



                                          -4-
175 F.3d 775, 780-81 (10th Cir. 1999).

        Here, the district court counted three cases as strikes:

        (1) M alek v. Haun, D.C. 2:93-cv-612, a § 1983 complaint which was

dismissed as frivolous;

        (2) Our affirmance of that dismissal in M alek v. Haun, 26 F.3d 1013 (10th

Cir. 1994);

        (3) M alek v. Wheeler, D.C. 2:03-cv-1055, a § 1983 complaint dismissed for

failure to exhaust his administrative remedies.

        Under Jennings, the district court’s dismissal in M alek v. Haun counts as a

strike. 175 F.3d at 780. However, our affirmance of that dismissal does not

count as an additional strike. Id. Only “[i]f we dismiss as frivolous the appeal of

an action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B), [do] both

dismissals count as strikes.” Id. In M alek v. Haun we affirmed the district

court’s dismissal, but we did not dismiss the appeal itself as frivolous. 26 F.3d at

1016.

        Finally, the dismissal of a § 1983 complaint for failure to exhaust is not

considered a strike, since it is not a dismissal pursuant to § 1915(e)(2)(B). See

Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (“[A] dismissal without

prejudice counts as a strike [only if] the dismissal is made because the action is

frivolous, malicious, or fails to state a claim.”).   Therefore, the district court

erred in counting the dismissal in M alek v. Wheeler as a strike.

        Because M alek had but one strike at the time the district court dismissed

this case, he may proceed ifp, if his petition is not frivolous. Upon remand, the

district court may consider that M alek now has three strikes, the previous one as

                                           -5-
noted in this case, and the two imposed in M alek v. Brockbrader. See n.3, supra.

W e remind M alek of his obligation to continue making partial payments until the

balance of the appellate filing fee is paid in full.

R EV ER SED .

                                         Entered by the C ourt:

                                         Terrence L. O ’Brien
                                         United States Circuit Judge




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