AWAN v. HARMON 54 (2018)

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.

Awan's motion seeking initial hearing en banc of his appeal is DENIED. See 5th Cir. R. 35.2.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.