Franklin Hiestand v. United States

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2666
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Franklin Hiestand, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: November 30, 2004
Filed: December 9, 2004
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Before MORRIS SHEPPARD ARNOLD, MURPHY, and SMITH, Circuit Judges.
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PER CURIAM.
Missouri inmate Franklin Hiestand appeals the dismissal without prejudice of
his 42 U.S.C. § 1983 action for nonpayment of the filing fee, after the district court
determined he was ineligible under 28 U.S.C. § 1915(g) to bring his action in forma
pauperis (IFP). Hiestand also moves for leave to proceed IFP on appeal. Because we
find he had not yet accumulated “three strikes” when the district court ruled, we grant
Hiestand leave to appeal IFP, assess the filing fee according to the provisions of the
Prison Litigation Reform Act, and leave the collection details to the district court.
We also find that Hiestand’s section 1983 action was subject to dismissal, but
on the ground that the complaint was frivolous. See Neitzke v. Williams, 490 U.S.
319, 325 (1989) (defining frivolous); Saulsberry v. St. Mary’s Univ. of Minn., 318
F.3d 862, 866 (8th Cir. 2003) (appellate court may affirm district court’s order on any
basis supported by record). Counting this dismissal, Hiestand now has three strikes
and will be barred from proceeding IFP in future actions or appeals, unless he meets
the imminent-danger exception noted in section 1915(g).
Accordingly, we affirm. See 8th Cir. R. 47A(a).
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