Charles W Armentrout v. John Tyra ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3161
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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Kehoe, Officer, Deputy Sheriff; * [UNPUBLISHED]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. *
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Submitted: January 28, 1999
Filed: February 9, 1999
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Before FAGG, HEANEY, and HANSEN, Circuit Judges.
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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.
-2-