     Case: 17-10379   Document: 00514386062   Page: 1   Date Filed: 03/14/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                              No. 17-10379
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                            Summary Calendar                          FILED
                                                                March 14, 2018
                                                                 Lyle W. Cayce
KHALID AWAN,                                                          Clerk

                                        Plaintiff-Appellant

v.

D. J. HARMON, Warden (Seagoville); A. GILL, Warden (Mendota); JUAN D.
CONSTILLO, Director (Western Regional Office); A. STRONG, Associate
Warden (Seagoville); GERARDO ROSALEZ, Associate Warden (Seagoville);
STEVE LAKE, Associate Warden (Mendota); D. WILSON, Administrative
Remedy Coordinator/Executive Assistant (Seagoville); J. LEAP, Special
Investigative Services Officer (Seagoville); G. SCHANFISH, Supervisory
Chaplain (Seagoville); NFN WHITE, Assistant Food Service Administrator
(Seagoville); NFN JOHNSON, Unit Manager - Buildings D-54 & 7 (Seagoville);
J. WILLIAMS, Education Technician (Seagoville); OFFICER NFN GUZMAN,
Unit Counselor - Building C-7 (Seagoville); EDDY M. MEIJA, Warden
(Seagoville) - (Retired); NFN HUNTER, Health Services Administrator
(Seagoville) - (Retired); MR. NFN BENSON, Trust Fund Supervision
(Seagoville) - (Retired); NFN WATSON, Education Teacher (Mendota) -
(Released); P. KANE, Centerl Bureau Director (Federal Bureau of Prisons); J.
A. KELLER, Director, Southwestern Central Regional Office,

                                        Defendants-Appellees


                Appeal from the United States District Court
                     for the Northern District of Texas
                           USDC No. 3:17-CV-130
     Case: 17-10379      Document: 00514386062         Page: 2    Date Filed: 03/14/2018


                                      No. 17-10379

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Khalid Awan, federal prisoner # 50959-054, filed a civil rights complaint
and a motion for leave to proceed in forma pauperis (IFP). The district court
found that Awan was barred under the three-strikes rule in 28 U.S.C. § 1915(g)
from filing his civil action because he was not under imminent danger of death
or serious physical injury. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th
Cir. 1996). The district court denied Awan’s motion for leave to proceed IFP
and ordered him to pay the filing fee or have his civil rights action dismissed.
The district court subsequently dismissed Awan’s complaint without prejudice
for having failed to pay the filing fee. Awan has appealed.
       In finding that Awan had three strikes, the district court counted the
case of Awan v. Lapin, 2010 WL 963916 (E.D. N.Y. March 17, 2010), as a strike
because some of Awan’s claims had been found to have failed to state a claim
upon which relief could be granted and some had been dismissed on summary
judgment. After the district court’s IFP denial, we held that a strike does not
issue unless all of the claims are dismissed for being frivolous, malicious, or
failing to state a claim. Brown v. Megg, 857 F.3d 287, 290-91 (5th Cir. 2017).
Accordingly, the cases cited by the district court do not establish that Awan
has three strikes under § 1915(g). The district court’s order finding that Awan
was barred under § 1915(g) and the subsequent dismissal of his complaint are
VACATED. The matter is REMANDED to the district court for consideration
consistent with Brown.




       * 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.



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    Case: 17-10379      Document: 00514386062   Page: 3   Date Filed: 03/14/2018


                                 No. 17-10379

      Awan’s motion seeking initial hearing en banc of his appeal is DENIED.
See 5TH CIR. R. 35.2.




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