Opinion
No. 07-2503.
Submitted: March 5, 2008.
Filed: April 16, 2008.
Appeal from the United States District Court for the Eastern District of Arkansas.
Carl Stanley Turner, Brickeys, AR, pro se.
Before COLLOTON, BENTON, and SHEPHERD, Circuit Judges.
Carl Turner appeals the district court's order denying him leave to proceed in forma pauperis (IFP) based on its finding that he had three strikes under 28 U.S.C. § 1915(g). Following our review of the three cases the district court listed as strikes, see Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007) (per curiam) (reviewing de novo district court's interpretation and application of § 1915(g)), we conclude that two of them did not count as strikes within the meaning of section 1915(g), cf. Newingham v. Westbrook, 140 FedAppx. 634, 634 (8th Cir. 2005) (unpublished per curiam) (clarifying that dismissal of Arkansas inmate's civil rights action for failure to exhaust administrative remedies did not count as "strike" within meaning of § 1915(g)); Williams v. Lehman, 111 Fed.Appx. 852, 852 (8th Cir. 2004) (unpublished per curiam) (case resolved though summary judgment did not constitute "strike"). Accordingly, we grant Turner's motion to appeal IFP, deny his motion for counsel, reverse the district court's order denying him IFP status based on section 1915(g), and remand for further proceedings.