                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          June 25, 2007
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 06-20088
                         Summary Calendar


GORDON RAY SIMMONDS,

                                    Plaintiff-Appellant,

versus

CLAVIN L. BLAKE, JR., Sergeant; MAJOR RICHARD GUNNELS;
JAMES L. JONES; CHARLES T. O’REILLY,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:05-CV-4254
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Gordon Ray Simmonds, Texas prisoner # 932489, has filed a

motion to proceed in forma pauperis (IFP) in the appeal of the

dismissal of his civil rights complaint he filed pursuant to

42 U.S.C. § 1983.   The district court dismissed the complaint

without prejudice after it determined that Simmonds had three

“strikes” under 28 U.S.C. § 1915(g).   The district court

identified three lawsuits filed by Simmonds that were dismissed



     *
      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this opinion should not be published and is not precedent except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. 06-20088
                                 -2-

as frivolous, malicious, or for failure to state a claim.

Simmonds contends that one of the identified dismissals,

specifically Simmonds v. United States Court of Appeals,

No. 2:04-CV-3000 (E.D. La. Nov. 19, 2004), should not have been

considered as a strike for purposes of § 1915(g) because it was

in the nature of a “habeas petition.”      He also contends that the

case should not have been counted as a strike because he is

currently appealing to this court the district court’s dismissal

of that case.

     In Simmonds v. United States Court of Appeals, No. 2:04-CV-

3000 (E.D. La. Nov. 19, 2004), the district court dismissed

Simmonds’s complaint with prejudice for failure to state a claim

on which relief may be granted, pursuant to § 1915(e)(2), and

denied him leave to proceed IFP on appeal.     In Simmonds v. United

States Court of Appeals, No. 05-30018 (5th Cir. Apr. 28, 2006)

(unpublished), this court denied Simmonds leave to proceed IFP

and dismissed his appeal as frivolous.     However, the appellate

process in that case was not exhausted prior to Simmonds filing

of his notice of appeal in the instant case.     Accordingly, the

district court erred in counting that case as a strike and in

determining that Simmonds was barred under § 1915(g).      See

Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

     Accordingly, IT IS ORDERED that Simmonds’s motion to proceed

IFP is GRANTED.   IT IS FURTHER ORDERED that the district court’s

dismissal of his § 1983 complaint is VACATED and the case is
                           No. 06-20088
                                -3-

REMANDED for further proceedings.
