                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 21 2001
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 DALTON LOYD WILLIAMS,

           Plaintiff-Appellant,
 v.                                                       No. 00-1414
 GARY NEET; GLORIA                                    (D.C. No. 00-Z-1619)
 MASTERSON; JOHN HYATT;                                     (D.Colo.)
 CHARLES TAPPE; KEN MAESTAS;
 PAUL CARRERAS; DAVID BELL;
 ARISTEDES ZAVARAS; JOHN
 SUTHERS,

           Defendants-Appellees.




                              ORDER AND JUDGMENT          *




Before HENRY , BRISCOE and MURPHY, 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       This order and judgment is not binding precedent, except under the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.
      Dalton Loyd Williams, a Colorado state prisoner appearing pro se, appeals

the district court’s dismissal of his complaint without prejudice, as well as the

court’s refusal to allow him to proceed in forma pauperis in district court. We

grant Williams’ motion to proceed in forma pauperis on appeal and dismiss his

appeal. In doing so, we agree with the district court that Williams is properly

classified as a “frequent filer” for purposes of 28 U.S.C. § 1915(g).

      On August 14, 2000, Williams filed a civil rights complaint asserting (1) he

was deprived of due process and equal protection rights during two prison

disciplinary proceedings, both of which allegedly resulted in loss of earned-time

credits and other benefits; and (2) the Director of the Colorado Department of

Corrections deprived him of due process and equal protection rights by issuing an

administrative order banning the use and possession of all tobacco products by

inmates. His complaint sought relief in the form of compensatory and punitive

damages, costs, and restoration of “all rights, privileges, classification points, and

time credits.” Complaint at 6.   Williams also filed a motion and affidavit for

leave to proceed in forma pauperis.

      On August 30, 2000, the magistrate judge issued an order noting that

Williams had filed eight civil actions that had been dismissed by the district court

under former 28 U.S.C. § 1915(d). The order directed Williams to show cause

why he should not be denied leave to proceed in forma pauperis under 28 U.S.C.


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§ 1915(g), the so-called “three strikes” provision. Williams filed a response

denying that any of the cases cited by the magistrate could be counted as

“strikes” for purposes of § 1915(g), claiming one of the actions was a habeas

proceeding and the remaining seven actions were voluntarily dismissed by him

with permission of the court.

      On September 22, 2000, the district court denied Williams’ motion to

proceed in forma pauperis and dismissed his complaint without prejudice. In

doing so, the district court effectively disagreed with Williams and concluded

that three or more of the prior civil actions filed by Williams had been dismissed

as frivolous under former 28 U.S.C. § 1915(d). The court subsequently denied

Williams’ motion to proceed on appeal in forma pauperis.

      On October 16, 2000, this court issued an order notifying Williams that,

according to records submitted by the district court clerk’s office, he had at least

three strikes for purposes of § 1915(g). Williams was directed to show cause

why his appeal should not be dismissed for failure to prepay the entire filing fee

as required by § 1915(g) or to show that the provisions of the Prison Litigation

Reform Act did not apply to this proceeding. Williams responded that he did not

recall filing one of the actions and that the remaining actions cited in the order

were not dismissed as frivolous but were “voluntarily withdrawn and dismissed

without prejudice” by him.


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       Section 1915(g) prohibits a prisoner from proceeding in forma pauperis in

a civil action in federal court “if the prisoner has, on 3 or more prior occasions,

while incarcerated or detained in any facility, brought an action or appeal” in

federal court “that was dismissed on the grounds that it is frivolous, malicious, or

fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g).

This prohibition does not apply to habeas proceedings,    see United States v.

Simmonds , 111 F.3d 737, 741 (10th Cir. 1997), nor does it apply where the

“prisoner is under imminent danger of serious physical injury.” 28 U.S.C.

§ 1915(g).

       We agree with the district court that Williams has at least three “strikes”

and is properly considered a “frequent filer” for purposes of § 1915(g).

According to the record on appeal, Williams has had at least three, and possibly

more, civil actions dismissed as frivolous by the Colorado federal district court.

Although Williams disputes that any of these prior actions were dismissed as

frivolous, the record on appeal irrefutably demonstrates otherwise. As a result,

Williams must prepay all necessary filing fees before the federal courts may

consider his civil actions and appeals.   White v. Colorado , 157 F.3d 1226, 1232

(10th Cir. 1998), cert. denied , 526 U.S. 1008 (1999).

       For purposes of this appeal, Williams’ status as a “frequent filer” prohibits

him from proceeding in forma pauperis on part but not all of the claims asserted


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in his complaint. To the extent he is seeking damages and costs for

constitutional deprivations, he is seeking civil relief pursuant to 42 U.S.C. §

1983 and must comply with § 1915(g). In other words, he must prepay all

necessary filing fees before pursuing those claims in district court or on appeal.   1



Williams’ complaint also seeks habeas relief in the form of restoration of his

earned-time credits and the subsequent reduction of the length of his

confinement.    See Heck v. Humphrey , 512 U.S. 477, 481 (1994) (noting that

“habeas corpus is the exclusive remedy for a state prisoner who challenges the

fact or duration of his confinement and seeks immediate or speedier release, even

though such a claim may come within the literal terms of § 1983”). Because

those claims do not fall within the scope of § 1915(g), Williams may pursue them

in federal court without prepayment of filing fees. Although the district court

erred in concluding otherwise, we find it unnecessary to reverse and remand the

habeas claims because there is no indication in the record that Williams has

exhausted his state court remedies with respect to those claims.



       1
           We note, however, that a portion of Williams’ § 1983 claims are barred
by Heck v. Humphrey , 512 U.S. 477 (1994). When judgment for a plaintiff in a
§ 1983 suit “would necessarily imply the invalidity of his conviction or sentence,
. . . the complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.”    Id. at 487. Before
Williams can seek damages for the alleged unconstitutional deprivation of
earned-time credits, he must first establish that the revocation has been
invalidated by a state or federal court.

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      Williams’ motion to proceed on appeal in forma pauperis is GRANTED.

Williams’ motion for a free copy of the records of his federal district court cases

is DENIED. The appeal is DISMISSED. A copy of this order shall be filed in

the records of the United States Court of Appeals for the Tenth Circuit related to

repeat frivolous filers. The mandate shall issue forthwith.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




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