                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           NOV 15 2001
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    DARREN EUGENE PERKINS,

                  Plaintiff-Appellant,

    v.                                                   No. 01-3111
                                                  (D.C. No. 00-CV-3229-GTV)
    MICHAEL A. NELSON, Warden;                              (D. Kan.)
    CHARLES E. SIMMONS, Secretary
    of Corrections; KANSAS
    DEPARTMENT OF CORRECTIONS,

                  Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and          BRORBY , Senior
Circuit Judge.




         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      This order and judgment is not binding precedent, except under the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.
      Appellant Darren Eugene Perkins, a prisoner of the State of Kansas, filed

this civil rights action under 42 U.S.C. § 1983 and moved for leave to proceed in

forma pauperis. The district court denied the motion for in forma pauperis status

on the basis that Mr. Perkins had three “prior occasions” or “strikes” within the

meaning of 28 U.S.C. § 1915(g). The district court also denied leave to proceed

on appeal in forma pauperis. Mr. Perkins appeals and moves in this court for

leave to proceed on appeal in forma pauperis. We have jurisdiction under

28 U.S.C. § 1291, grant the motion for leave to proceed on appeal in forma

pauperis, and reverse.

      The Prison Litigation Reform Act, enacted on April 26, 1996, changed the

manner in which indigent prisoners may proceed in the United States district

courts. The so-called “three strikes” provision of the in forma pauperis statute

now 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.

28 U.S.C. § 1915(g).




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       This court summarized the rules for counting strikes under the revised

language of § 1915(g) in   Jennings v. Natrona County Detention Center Medical

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

       (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.

       Mr. Perkins is a frequent filer. Since 1995, he has filed eleven civil rights

complaints and two habeas petitions in the United States District Court for the

District of Kansas, and six appeals in this court (including this one). Out of those

cases, he has acquired two strikes.   Perkins v. Dettmann-Roudybush    , No. 97-CV-

                                          -3-
3170 (D. Kan. May 19, 1997), was a civil rights action filed pursuant to 42 U.S.C.

§ 1983. The district court dismissed the complaint as frivolous. That counts as a

strike under 28 U.S.C. § 1915(e)(2)(B)(i) and the second rule set out in     Jennings ,

175 F.3d at 780.

       Perkins v. Derstein , No. 96-CV-3039 (D. Kan. Jan. 31, 1996), was also a

civil rights action, and the district court dismissed it for failure to state a claim

for relief. That counts as a strike under § 1915(e)(2)(B)(ii) and the second rule

set out in Jennings , 175 F.3d at 780. This court affirmed that dismissal on appeal

but, under the third rule set out in   Jennings , our affirmance does not count as an

additional strike.   See id. Although we noted in the disposition our agreement

with the district court that the appeal was legally frivolous, the disposition was an

affirmance. See Perkins v. Derstein , No. 96-3045, 1996 WL 290377, at **1 & n.1

(10th Cir. June 3, 1996) (unpublished). We count no other strikes.

       Because appellant has two strikes rather than three, he may proceed in

forma pauperis. Appellant has consented to disbursement of partial payments of

the filing fees from his prison account. Appellant must pay $105.00 to the clerk

of the district court. His custodian shall, within thirty days of the date of this

order, deduct and pay to the clerk of the United States District Court for the

District of Kansas an amount equal to twenty percent of the greater of–

       (A) the average monthly deposits to his accounts, or


                                             -4-
      (B) the average monthly balance in his account for the six-month period
      immediately preceding filing of the notice of appeal in this case.

      In either event, appellant’s custodian shall forward payments from

appellant’s account equal to twenty percent of the preceding month’s income each

time the account exceeds $10.00 until the filing fees are paid in full. The

Attorney General for the State of Kansas is directed to serve a copy of this order

on appellant’s custodian forthwith.

      The judgment of the United States District Court for the District of Kansas

is REVERSED, and the case is REMANDED for further proceedings.



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Chief Judge




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