                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                PUBLISH
                                                                     APR 20 1999
                UNITED STATES COURT OF APPEALS
                                                                PATRICK FISHER
                                                                          Clerk
                            TENTH CIRCUIT



TOMI EDWARD JENNINGS, JR.,

     Plaintiff-Appellant,

v.                                                No. 98-8032

NATRONA COUNTY DETENTION
CENTER MEDICAL FACILITY,

     Defendant-Appellee.


TOMI EDWARD JENNINGS, JR.,

     Plaintiff-Appellant,
                                                  No. 98-8035
v.

NATRONA COUNTY DETENTION
CENTER OFFICER, in her official
capacity, a/k/a Tammy McNutt,

     Defendant-Appellee.


               Appeal from the United States District Court
                       for the District of Wyoming
                   (D.C. Nos. 98-CV-70 & 98-CV-108)
Submitted on the briefs:   *



Tomi Edward Jennings, Jr., Pro se.

Eric A. Easton, Natrona County Attorney, Casper, Wyoming, for
Defendants-Appellees.


Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.


BRORBY , Circuit Judge.



      These appeals are taken from judgments of the United States District Court

for the District of Wyoming dismissing, under 28 U.S.C. § 1915(e)(2)(B), two

civil rights actions filed by Mr. Jennings. We have jurisdiction under 28 U.S.C.

§ 1291 and dismiss these appeals as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

However, we reverse the manner in which the district court counted prior

occasions for purposes of applying the “three strikes” provision of 28 U.S.C.

§ 1915(g), and allow Mr. Jennings to proceed in both appeals   in forma pauperis . 1


      *
        After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). The cases are therefore ordered submitted without oral argument.

      1
        The district court permitted Mr. Jennings to appeal No. 98-8032   in forma
pauperis , but denied Mr. Jennings in forma pauperis status with regard to appeal
No. 98-8035.


                                          -2-
                                     Background

No. 98-8032, Jennings v. Natrona County Detention Center Medical Facility

      Mr. Jennings filed a civil rights action under 42 U.S.C. § 1983 against the

Natrona County Detention Center Medical Facility on March 23, 1998. He

claimed he was denied or received delayed necessary medical attention in

violation of the Eighth Amendment to the United States Constitution. The relief

prayed for was “[m]edical attention that is needed” and $10,000 “to pay for the

medical need [he] can’t receive.” Mr. Jennings attached to his complaint copies

of various medical logs and requests for medical attention, as well as receipts for

prescription drugs.



      The district court granted Mr. Jennings leave to proceed    in forma pauperis

and thus pay the filing fee for his § 1983 action in installments pursuant to 28

U.S.C. § 1915(b). The court dismissed this action April 23, 1998, for failure to

state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B).

According to the district court, Mr. Jennings (1) failed to allege a county policy

or custom had caused him an injury, (2) provided no factual basis to establish a

claim of cruel and unusual punishment, and (3) made no claims establishing

serious harm or deliberate indifference by jail officials. The district court

permitted Mr. Jennings to proceed on appeal     in forma pauperis .


                                          -3-
No. 98-8035, Jennings v. Natrona County Detention Center Officer

      Four days later, on April 27, 1998, Mr. Jennings filed another civil rights

action, this time against a specific jail official. Mr. Jennings accused Officer

McNutt of “[d]eliberate indifference” and of “[affecting] my progress in such

a way that the situation is never solved.” He sought Officer McNutt’s “discharge

from her position of authority” and $25,000 “for making my stay a very bad one

while I’m a pretrial detainee.”



      The district court again granted leave to proceed     in forma pauperis under

the partial payment plan, held that the allegations failed to establish cruel and

unusual punishment, and dismissed the action under 28 U.S.C. § 1915(e)(2)(B)

for failure to state a claim for relief and as frivolous.



      The district court then denied Mr. Jennings’ motion for leave to appeal this

dismissal in forma pauperis , finding that Mr. Jennings had “on three or more

prior occasions, while incarcerated, brought an action or appeal in federal court

that was dismissed as frivolous or for failure to state a claim.” Consequently, Mr.

Jennings was prohibited from appealing the district court’s ruling in this § 1983

action unless and until he paid the appellate filing fee in toto, or established that

he was under imminent danger of serious physical injury. 28 U.S.C. § 1915.


                                           -4-
                        Rules Applicable to 28 U.S.C. § 1915(g)

       Section 1915(g), the “three strikes” provision of the        in forma pauperis

statute, as amended by the Prison Litigation Reform Act of 1995, Pub.L. No. 104-

134, 110 Stat. 1321 (Apr. 26, 1996), 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). “This provision requires so-called ‘frequent filer’ prisoners

to prepay the entire filing fee before federal courts may consider their civil

actions and appeals.”     White v. Colorado , 157 F.3d 1226, 1232 (10th Cir. 1998),

cert. denied , 119 S. Ct. 1150 (1999). It does not prevent prisoners with three

strikes from filing civil actions; it merely prohibits them the privilege of     in forma

pauperis status. Id. at 1233.



       At issue here is whether Mr. Jennings has three or more qualifying

dismissals under § 1915(g) and hence must pay up front for the privilege of filing

or appealing these or any additional civil actions. In counting Mr. Jennings’ prior

occasions (or strikes), the district court included the case before it (10th Cir.

No. 98-8035), and the action against the Natrona County Detention Center


                                              -5-
Medical Facility (10th Cir. No. 98-8032). To reach strike three, the court added

an earlier habeas corpus action,   Jennings v. Wyoming Attorney General     ,

No. 96-CV-181-D (D. Wyo. Feb. 28, 1997), which was dismissed           without

prejudice both for failure to exhaust state court remedies and for failure to state a

claim. We first address the propriety of counting a habeas corpus action as a

prior occasion under § 1915(g). We then address the issue of how to count strikes

when a case or cases dismissed by the district court are presented for appellate

review.



Habeas Case as Prior Occasion

       In determining that the habeas action was countable as a strike, the court

relied on language in United States ex rel. Gillespie v. Nelson   , No. 96-C-6989,

1997 WL 201563, at *7 & n.4 (N.D. Ill. Apr. 17, 1997). Since       Gillespie , this

court has determined habeas corpus petitions are not “civil action[s]” for purposes

of 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act.        United

States v. Simmonds , 111 F.3d 737, 741, 743 (10th Cir. 1997) (“we conclude the

intent and purpose of the Prison Litigation Reform Act shows the phrase ‘civil

action’ in 28 U.S.C. § 1915 was not meant to apply to habeas corpus and 28

U.S.C. § 2255 proceedings”). Although      Simmonds did not specifically address

the “three strikes” provision at § 1915(g), there is no rational reason to treat that


                                           -6-
provision differently from the rest of 28 U.S.C. § 1915. Accordingly, the district

court erred when it counted Mr. Jennings’ prior habeas corpus action as a strike

under § 1915(g).   2




Counting Nonfinal Cases as Strikes

      In addition to counting Mr. Jennings’ prior habeas action as a strike, the

district court counted as strikes its dismissal of the two § 1983 complaints

underlying both appeals here before us (Nos. 98-8032 and 98-8035). The notice

of appeal in No. 98-8032 was filed on May 12, 1998, while the action underlying

No. 98-8035 was still pending in district court. Thus, the district court’s

dismissal of the case underlying No. 98-8032 for failure to state a claim, 28



      2
          We are not dealing here with a habeas petition containing both habeas
corpus and civil rights claims, which, when dismissed under § 1915(e) as
frivolous, may count as a prior occasion,   see Herrera v. Keating , No. 97-6078,
1997 WL 687695, at **1, 3 (10th Cir. Oct. 30, 1997),      cert. denied, 118 S. Ct.
1846 (1998) (insofar as claims in § 2254 petition could be construed as action
under § 1983, dismissal would count as prior occasion). Nor are we dealing with
a habeas petition more appropriately construed as a § 1983 action and thus
countable as a strike. See Bakalov v. McCotter , No. 97-4023, 1998 WL 165119,
at *1 (10th Cir. Apr. 2, 1998) (§ 2254 habeas petition was correctly construed as
action under § 1983 as “simply not a collateral attack on the fact or duration of
[petitioner’s] confinement”); see also Jordan v. Bowles , Nos. 96-2169, 96-2183,
96-2211, 1997 WL 589174, at **2-3 (10th Cir. Sept. 24, 1997) (frivolous appeal
from habeas action which had been properly construed as civil rights action
would count as prior occasion under 28 U.S.C. § 1915(g)). Mr. Jennings’ 1997
action raised strictly habeas claims under 28 U.S.C. § 2254.


                                         -7-
U.S.C. § 1915(e)(2)(B), was subject to further review by this court. By counting

the dismissal as a strike, the district court effectively treated that appealed

decision as final for purposes of § 1915(g). While this strike determination did

not affect the proceedings in appeal No. 98-8032, it did supply the basis for the

district court’s subsequent ruling in the case underlying No. 98-8035 that Mr.

Jennings had by then collected a total of three strikes and therefore could not

appeal the dismissal of his second § 1983 action   in forma pauperis . These

circumstances present us with the question of whether a district court dismissal

should be counted as a strike before the litigant has exhausted or waived his

opportunity to appeal. We conclude it should not.



      As aptly explained by the Fifth Circuit in   Adepegba v. Hammons , 103 F.3d

383, 387 (5th Cir. 1996), to count strikes before the litigant has an opportunity to

appeal the district court’s dismissal is to risk “inadvertently punishing

nonculpable conduct.” For example, a “hyper-literal” reading of § 1915(g) to

count all district court dismissals as “prior occasions” whether or not the litigant

has appealed those decisions could bar a prisoner’s appeal of an erroneous third

strike, since the appeal would follow three prior dismissals. Or, an indigent

prisoner’s fourth claim could expire while one or more of his first three

dismissals was being reversed on appeal. While it is clear Congress enacted


                                           -8-
§ 1915(g) to curb frivolous complaints and appeals, we agree with the Fifth

Circuit that Congress did not intend to “freeze out meritorious claims or ossify

district court errors.”       Adepegba , 103 F.3d at 388. Accordingly, a § 1915(e)(2)(B)

dismissal should not count against a litigant until he has exhausted or waived his

appeals. Id.; see also Pigg v. FBI , 106 F.3d 1497, 1498 (10th Cir. 1997) (because

“‘[p]rior’ is defined in Webster’s Ninth New Collegiate Dictionary as ‘earlier in

time,’” district court erred in counting the plaintiff’s present action as one of the

three prior actions).     3




       Because Mr. Jennings’ appeal from the district court’s dismissal of his

March 1998 complaint against the Natrona County Detention Center Medical



       3
         We are bound by prior panel decisions in the absence of en banc
reconsideration or a superceding contrary Supreme Court decision,          see Haynes v.
Williams , 88 F.3d 898, 900 n.4 (10th Cir. 1996) (following the rule that “when
faced with an intra-circuit conflict, a panel should follow earlier, settled
precedent over a subsequent deviation therefrom”). To the extent any of our
cases are inconsistent with Pigg , 106 F.3d at 1498, Young v. Miller , 144 F.3d
1298, 1299 (10th Cir. 1998), or the holding in this case, they are overruled.      See,
e.g., Mapp v. Dovala , 138 F.3d 1335, 1337 (10th Cir. 1998).

       We have circulated this opinion to the en banc court pursuant to our rules.
Each member of the en banc court has concurred with our holding that a case
should not be counted as a “prior occasion” for purposes of making the
computation required by § 1915(g) unless and until the decision becomes final,
either through completion of the appeal process or by passage of time if no appeal
is taken.


                                               -9-
Facility was pending, we conclude the district court erred in counting its dismissal

of that complaint as a strike. By the same token, we conclude the district court

also erred in counting its dismissal of Mr. Jennings’ April 1998 complaint against

Officer McNutt as a strike prior to Mr. Jennings’ exhaustion or waiver of his

opportunity to appeal that ruling. Mr. Jennings therefore was not prohibited

under § 1915(g) from appealing the decision to dismiss his April 1998 complaint

(appeal No. 98-8035) in forma pauperis .



Summary

       To summarize and provide guidance for future cases, we count strikes for

purposes of 28 U.S.C. § 1915(g) as follows:

       (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


                                            -10-
the plain language of the statute, only a dismissal may count as 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. Jennings’ Appeals

No. 98-8032, Jennings v. Natrona County Detention Center Medical Facility

      The district court correctly determined this action was frivolous under 28

U.S.C. § 1915(e)(2)(B). Mr. Jennings names no particular offending defendant,

but simply presents a series of disagreements over what medication he should

receive and how often. A “‘[d]elay in medical care can only constitute an Eighth

Amendment violation if there has been deliberate indifference which results in

substantial harm.’”   Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993) (quoting

Mendoza v. Lynaugh , 989 F.2d 191, 195 (5th Cir. 1993)). Mr. Jennings’

allegations utterly fail to show his medical needs were serious or prison officials


                                          -11-
acted with deliberate indifference to his health. To the contrary, the documents

attached to his complaint reflect he was given medical attention and prescriptions

on a number of occasions. At best, then, his claim amounts to a difference of

opinion over the medical treatment he received. This difference of opinion does

not rise to the level of a constitutional violation.   See Johnson v. Stephan , 6 F.3d

691, 692 (10th Cir. 1993).



       The district court also correctly noted the county could be held liable under

§ 1983 only for its own unconstitutional or illegal policies, not for the tortious

acts of its employees.    See Barney v. Pulsipher , 143 F.3d 1299, 1307 (10th Cir.

1998). Mr. Jennings does not allege the existence of any such policies, but rather

that medical attention was denied or delayed. This is insufficient to state a claim

against the county.



       For these reasons, we conclude Mr. Jennings appeal in No. 98-8032 is

frivolous under § 1915(e)(2)(B)(i). The district court’s dismissal of the complaint

and our dismissal of the appeal therefore count as two strikes.




                                              -12-
No. 98-8035, Jennings v. Natrona County Detention Center Officer

        This complaint, although naming a particular defendant and alleging

“deliberate indifference,” also fails to allege the denial of a constitutional right.

Mr. Jennings’ statements the officer was affecting his “progress in such a way

that the situation is never solved” and making his “stay a very bad one,” are vague

and conclusory. These allegations do not establish Mr. Jennings was denied “the

minimal civilized measure of life’s necessities,”   Farmer v. Brennan , 511 U.S.

825, 834 (1994) (internal quotation marks and citation omitted), or a responsible

official acted with deliberate indifference to his medical needs. Lacking any

arguable basis in law or fact, we deem appeal No. 98-8035 frivolous under 28

U.S.C. § 1915(e)(2)(B)(i). Mr. Jennings thus has accumulated strikes three      4
                                                                                    and

four.


                                       Conclusion

        Because the district court erroneously denied leave to proceed with appeal

No. 98-8035, we grant leave to proceed in this appeal in accordance with the

installment payment provisions of 28 U.S.C. § 1915(b). Mr. Jennings now has




        We note this was at least the third action Mr. Jennings has initiated in the
        4

United States District Court for the District of Wyoming. An earlier case,
No. 97-CV-311, Jennings v. Laramie County Detention Center     , filed in
December 1997, was dismissed October 19, 1998.


                                           -13-
four strikes for purposes of § 1915(g) and may not proceed   in forma pauperis in

any future federal lawsuits, other than habeas, which do not involve “imminent

danger of serious physical injury.”   See White , 157 F.3d at 1232 (prisoners with

three strikes must prepay entire fee before federal courts may consider their

actions or appeals).



       Under § 1915(e)(2)(B)(i), if a court determines that an action or appeal is

frivolous, “the court shall dismiss the case.” Accordingly, these appeals are

DISMISSED .




                                          -14-
