United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 98-3161 ___________

Charles W. Armentrout, III, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. John Tyra, Deputy Sheriff; Unknown * Kehoe, Officer, Deputy Sheriff; * [UNPUBLISHED] Unknown Central Jailer, * * Appellees. * ___________

Submitted: January 28, 1999 Filed: February 9, 1999 ___________

Before FAGG, HEANEY, and HANSEN, Circuit Judges. ___________

PER CURIAM.

Missouri prisoner Charles W. Armentrout appeals from the district court&s order denying him leave to proceed in forma pauperis (IFP) under the “three strikes” provision of 28 U.S.C. § 1915(g). Armentrout concedes he has one “strike,” and we believe the district court correctly concluded a second of Armentrout&s prior actions-- an action which was dismissed without prejudice under Heck v. Humphrey, 512 U.S. 477 (1994)--counted as a strike.1 See Rivera v. Allin, 144 F.3d 719, 730-31 (11th Cir. 1998), pet. for cert. filed, ____ U.S.L.W. ____ (U.S. Sept. 17, 1998) (No. 98-5572); Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 462-64 (5th Cir. 1998). Because we conclude, however, the district court erred in counting as a “strike” a third prior action that Armentrout voluntarily withdrew, we grant Armentrout leave to proceed IFP and remand for further proceedings.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

1 The two cases counted as strikes by the district court to which we are referring are McDonald v. Carnahan, No. 4:97CV1927, and Armentrout v. Haman, No. 4:96CV467.

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