F I L E D United States Court of Appeals Tenth Circuit

JUL 29 1998 UNITED STATES COURT OF APPEALS

TENTH CIRCUIT PATRICK FISHER Clerk

MARVIN BROWN,

Plaintiff - Appellant, No. 97-2294 v. (D. New Mexico) CENTRAL NEW MEXICO (D.C. No. CIV-97-825-BB) CORRECTIONAL FACILITY; JOE WILLIAMS, Warden, Central New Mexico Correctional Facility; KEVIN R. WIGGINS, Captain; JOSE ROMERO, Captain; EDWARD CHAVEZ,

Defendants - Appellees.

MARVIN BROWN,

Plaintiff - Appellant, No. 98-2051 v. (D. New Mexico) DAN RAMIREZ; JOYCE (D.C. No. CIV-98-40-BB/JHG) TERRASAS; PROBATION AND PAROLE DEPARTMENT,

Defendants - Appellees. MARVIN BROWN,

Plaintiff - Appellant, No. 98-2052 v. (D. New Mexico) CITY OF ALBUQUERQUE; ROSS C. (D.C. No. CIV-98-41-BB/LCS) SANCHEZ, Judge; BRUCE MCALLISTER, A.P.D. Officer; VERNON WILSON; DAN RAMIREZ; JOYCE TERRASAS, Probation and Parole Department; RUDY SANCHEZ; ALBUQUERQUE POLICE DEPARTMENT,

Defendants - Appellees.

MARVIN BROWN,

Plaintiff - Appellant, No. 98-2063 v. (D. New Mexico) CITY OF ALBUQUERQUE; (D.C. No. CIV-98-42-MV/RJS) ALBUQUERQUE POLICE DEPARTMENT; BRUCE MCALLISTER,

Defendants - Appellees.

-2- ORDER AND JUDGMENT *

Before ANDERSON, MCKAY, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is

therefore ordered submitted without oral argument.

Marvin Brown, a state prisoner proceeding pro se, appeals the dismissal of

four actions he brought pursuant to 42 U.S.C. § 1983. The district court denied

Mr. Brown leave to proceed in forma pauperis and dismissed each of his civil

rights complaints because it found that Mr. Brown had, on at least three prior

occasions, filed a civil action that was dismissed as frivolous or malicious or for

failure to state a claim. 1 See 28 U.S.C. § 1915(g). In support of this finding, the

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 1 Under § 1915(g), a prisoner may not bring a civil action or appeal a judgment in a civil action or proceeding in forma pauperis if the prisoner has, “on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on (continued...)

-3- district court cited the following three previous civil actions filed by Mr. Brown:

Brown v. New Mexico District Court Clerks, No. CIV-96-0968 (D.N.M. Jan. 22,

1997); Brown v. McAllister, No. CIV-94-1462 (D.N.M. June 7, 1996); Brown v.

Brennan, No. CIV-94-1010 (D.N.M. Sept. 30, 1994).

The threshold problem in each of these appeals, however, is that Mr. Brown

does not have the requisite three “prior occasions.” Although case number

96-0968 was dismissed by the district court for failure to state a claim, that

dismissal was vacated by this court on appeal and thus cannot count as a “prior

occasion.” See Brown v. New Mexico District Court Clerks, No. 97-2044 (10th

Cir. Mar. 19, 1998). Case number 94-1462, which was ultimately dismissed by

this court as frivolous, see Brown v. McAllister, No. 97-2035 (10th Cir. Mar. 19,

1998), was only dismissed by the district court pursuant to a stipulated motion to

dismiss the complaint. It therefore, can account for only one “prior occasion.”

Finally, while case number 94-1010 was dismissed by the district court as

frivolous, there is no indication in the record that Mr. Brown appealed this

dismissal. Thus, this case can also account for only one “prior occasion.”

1 (...continued) the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” This “three strikes” provision does not apply, however, where the prisoner is under imminent danger of serious physical injury, see 28 U.S.C. § 1915(g). The district court specifically found that none of Mr. Brown’s civil rights complaints contained such an allegation.

-4- Based on our calculations, therefore, Mr. Brown has only two “prior

occasions,” and the district court erred in dismissing his claim under § 1915(g).

Accordingly, the judgment of the district court in each of these cases is

VACATED, and they are REMANDED to the district court for further

proceedings.

ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge

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