Carl Turner v. Ray Hobbs, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Lavenski R. Smith and Duane Benton (UNPUBLISHED); Granting [3948784-2] motion to proceed on appeal in forma pauperis filed by Mr. Carl Stanley Turner. [3974963] [12-2989]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2989
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Carl Stanley Turner
lllllllllllllllllllll Plaintiff - Appellant
v.
Ray Hobbs, Director, Arkansas Department of Correction; Burl, Warden,
E.A.R.U., Arkansas Department of Correction; Todd Ball, Assistant Warden,
E.A.R.U., Arkansas Department of Correction; Verie Westbrook, Classification
Supervisor, E.A.R.U., Arkansas Department of Correction; Moses Jackson, Chief
of Security, E.A.R.U., Arkansas Department of Correction; Paulette Green,
Classification Supervisor, E.A.R.U., Arkansas Department of Correction
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Helena
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Submitted: October 24, 2012
Filed: November 15, 2012
[Unpublished]
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Before MURPHY, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.

Appellate Case: 12-2989

Page: 1

Date Filed: 11/15/2012 Entry ID: 3974963

Arkansas inmate 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), and dismissing without prejudice his 42 U.S.C. § 1983
complaint. Upon review of the three cases the district court identified as strikes, see
Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007) (per curiam) (de novo review of
district court’s interpretation and application of § 1915(g)), we conclude--in
accordance with an earlier decision by this court--that one of them does not qualify
as a strike, because the dismissal in that case was for lack of administrative
exhaustion, see Turner v. Norris, 273 Fed. Appx. 579, 580 (8th Cir. 2008)
(unpublished per curiam). We agree with the district court that the two other cases
qualify as strikes under section 1915(g), but we are unaware of any other qualifying
strike. In addition, we conclude that Turner is financially eligible for IFP status.
Accordingly, we grant his motion for leave to proceed IFP in this appeal, we reverse
the district court’s order denying him IFP status and dismissing his complaint without
prejudice under section 1915(g), and we remand the case for further proceedings.
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Appellate Case: 12-2989

Page: 2

Date Filed: 11/15/2012 Entry ID: 3974963