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175 F. App'x 780

Brown v. Norris

U.S. Courts of Appeals

Decided April 12, 2006

U.S. Courts of Appeals · decided 2006-04-12

Applies 28 U.S.C. § 1915 · 42 U.S.C. § 1983 (Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act))

Relies on Rivera v. Allin

Decided 2006-04-12

PER CURIAM.

¶1Arkansas inmate Donald X. Brown appeals the district court’s preservice dismissal without prejudice of his 42 U.S.C. § 1983 action as barred by the “three-strikes” provision of 28 U.S.C. § 1915(g). We grant Brown leave to proceed in forma *781pauperis, and we remand to the district court.

¶2We review de novo a district court’s determination of qualifying strikes. See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir.1998). After reviewing the relevant documents from the cases the district court counted as strikes, we conclude that the two dismissals for failure to exhaust prison grievance procedures—Brown v. Jorgenson, No. 5:98CV00245, and Brown v. Mobley, No. 4:01CV00302—do not count as strikes. While we express no opinion as to whether Brown’s other dismissals count as strikes under 28 U.S.C. § 1915(g), the record before us establishes Brown can have no more than two strikes.

¶3Accordingly, we remand to the district court for further proceedings. We deny Brown’s motion for appellate counsel.

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