UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6410
ANDRE GERARD LEWIS, SR.,
Plaintiff - Appellant,
versus
RONALD J. ANGELONE, CAPTAIN LEONARD,
Defendants - Appellees.
No. 03-6720
ANDRE GERARD LEWIS,
Plaintiff - Appellant,
versus
RONALD J. ANGELONE; CAPTAIN LEONARD,
Defendants - Appellees.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CA-03-207-R; CA-03-207-3)
Submitted: December 13, 2004 Decided: January 6, 2005
Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Andre Gerard Lewis, Sr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Andre Gerard Lewis, a
Virginia prisoner, appeals district court orders denying his motion
to proceed in forma pauperis under the PLRA and dismissing his case
without prejudice for failing to pay the filing fee. Under the
Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321
(1996), a prisoner who has had three or more actions or appeals
dismissed as frivolous, malicious, or for failure to state a claim
upon which relief may be granted, may not proceed without
prepayment of fees unless he is under imminent danger of serious
physical injury. 28 U.S.C. § 1915(g) (2000). The district court,
in rejecting Lewis’ motion to proceed under the PLRA, determined
Lewis previously had at least three actions or appeals dismissed as
frivolous or for failing to state a claim. Two of the actions
relied upon by the district court were civil rights complaints that
were in fact dismissed by the district court for failure to state
a claim. See Lewis v. Angelone, No. CV-02-317 (E.D. Va. Nov. 5,
2002); Lewis v. Angelone, No. CV-00-161 (E.D. Va. May 16, 2001).
However, the other two actions the district court cited were not
qualifying dismissals. See In re Lewis, 2002 WL 31430531 (4th Cir.
Oct. 31, 2002) (No. 02-7275) (unpublished); In re Lewis, 2002 WL
214558 (4th Cir. Feb. 12, 2002) (No. 01-7795) (unpublished).
However, because Lewis is proceeding without prepayment
of fees, this Court shall dismiss the appeal if the action fails to
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state a claim upon which relief may be granted. See 28 U.S.C.
§ 1915(e)(2)(B)(ii) (2000). It plainly appears from the face of
the complaint that it is barred by the applicable statute of
limitations.
Accordingly, while we grant Lewis’ motion to proceed on
appeal in forma pauperis, we dismiss the appeals for failing to
state a claim.* We dispense with oral argument because the facts
and legal contentions of the parties are adequately presented in
the materials before the Court and argument would not aid the
decisional process.
DISMISSED
*
We note because Lewis initiated these appeals while he was
incarcerated and they are dismissed for failing to state a claim
upon which relief may be granted, the appeals count as “strikes”
three and four with respect to § 1915(g). Accordingly, should
Lewis find himself incarcerated again and file a civil lawsuit in
federal court, he will be subject to the filing fee limitations
imposed by § 1915(g).
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