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PATTON v. JEFFERSON CORRECTIONAL CENTER

No. 97-30547.

136 F.3d 458 (1998)

John W. PATTON, Plaintiff-Appellant, v. JEFFERSON CORRECTIONAL CENTER; Harry Lee, Sheriff of Jefferson Parish; Ernest V. Richards, IV, Judge, Division B; Karen Morgen, Assistant District Attorney; Pat Hand, III, Assistant District Attorney; and Susan D. Rushing, Lt. Detective, JPSO, Defendants-Appellees.

United States Court of Appeals, Fifth Circuit.

March 13, 1998.

Attorney(s) appearing for the Case

John W. Patton, Livingston, TX, pro se.

Daniel R. Martiny, Franz L. Zibilich, Lee, Martiny and Caracci, Metairie, LA, for Jefferson Correctional Center, Harry Lee, and Susan D. Rushing.

Sandra Ema Gutierrez, Dept. of Justice, Litigation Div., New Orleans, LA, for Ernest V. Richards, IV.

Terry Michael Boudreaux, Asst. Dist. Atty., Gretna, LA, for Karen Morgen, and Pat Hand, III.

Before JONES and SMITH, Circuit Judges, and FITZWATER, District Judge.

FITZWATER, District Judge:

We decide in this appeal whether dismissal of a 42 U.S.C. § 1983 action as frivolous is a strike within the meaning of the "three strikes" provision of the Prison Litigation Reform Act of 1995 ("PLRA"), 28 U.S.C. § 1915(g), when the suit is also construed to allege a habeas claim and is in part dismissed without prejudice for failure to exhaust state court remedies. Because we hold that it is a countable strike, and because under...

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