UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7223
GEORGE SAMUEL GREEN, JR.,
Plaintiff - Appellant,
versus
GENE M. JOHNSON; FRED SCHILLING, Health
Services Director, Virginia Department of
Corrections; ROBIN L. HULBER, Ph.D.,
Defendants - Appellees,
and
M. VERNON SMITH, M.D.,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (CA-03-349)
Argued: May 27, 2005 Decided: July 29, 2005
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Neal Lawrence Walters, Charlottesville, Virginia, for
Appellant. Richard Carson Vorhis, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees.
ON BRIEF: Berton W. Ashman, Jr., Third Year Law Student, UNIVERSITY
OF VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic,
Charlottesville, Virginia, for Appellant. Jerry W. Kilgore,
Attorney General, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Appellant George Samuel Green, Jr. appeals from the district
court’s order granting summary judgment in favor of Defendants in
his 42 U.S.C.A. § 1983 (West 2003) action. For the reasons that
follow, we affirm.
I.
Green applied to proceed in forma pauperis and bring this
action against Defendants under § 1983. Green alleges that he has
Hepatitis C and is being denied life-saving medical treatment. He
seeks both injunctive and monetary relief.
In determining whether Green was entitled to proceed in forma
pauperis, the district court noted that the Prison Litigation
Reform Act (PLRA) prohibits a prisoner from bringing a civil action
or from appealing a judgment in a civil action “if the prisoner
has, on 3 or more prior occasions, while incarcerated or detained
in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.” 28 U.S.C.A. § 1915(g) (West Supp.
2005). Under this statutory provision, the district court
concluded that “Plaintiff has had numerous actions dismissed on the
grounds that they are frivolous or fail to state a claim.” J.A.
3
12. In particular, the district court pointed to “Action Numbers
2:94cv487, 2:97cv26, and 2:97cv937,” as “dismissed for
frivolousness or failure to state a claim.” J.A. 12-13. In fact,
however, two of these cases were dismissed as frivolous and one was
dismissed without prejudice for failure to exhaust administrative
remedies.* Nevertheless, the district court permitted Green to
proceed because “plaintiff’s current complaint may allege a
situation that would place him in imminent danger of serious
physical harm.” J.A. 13. The district court determined that this
action fell within the exception to the “three strikes” rule set
forth in § 1915(g), permitting prisoners with three strikes to
proceed in forma pauperis when there is an imminent danger of
serious physical harm. Based upon this analysis, the district
court granted Green’s request to proceed in forma pauperis.
Defendants answered and filed a motion to dismiss or, in the
alternative, for summary judgment. After Green responded by filing
his own motion for summary judgment and memorandum opposing
Defendants’ motion, the district court granted summary judgment in
favor of Defendants. The district court found that Green failed to
provide any evidence from which a fact finder could reasonably
conclude either (1) that Green was denied adequate medical care in
*
Section 1997e(a) requires that inmates exhaust all
administrative remedies before filing an in forma pauperis action
challenging prison conditions under federal law. See 42 U.S.C.A.
§ 1997e(a) (West 2003).
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violation of his rights under the Eighth Amendment against cruel
and unusual punishment or (2) that the non-medical prison officials
named as defendants, who relied on the expertise of the prison
doctors for Green’s medical treatment, acted with deliberate
indifference to Green’s medical needs.
From this judgment, Green appeals and raises two arguments.
We reject both arguments as follows.
II.
Green first challenges the district court’s determination that
a dismissal without prejudice for want of exhaustion should count
as a “strike” under § 1915(g). Green contends that an action
dismissed for failure to exhaust is not a suit “that was dismissed
on the grounds that it is frivolous, malicious, or fails to state
a claim upon which relief may be granted.” 28 U.S.C.A. § 1915(g).
Whether an action dismissed for failure to exhaust under the
PLRA amounts to a “strike” under § 1915(g) is a question of
statutory construction reviewed de novo. See United States v.
Pressley, 359 F.3d 347, 349 (4th Cir. 2004). The district court
determined that Green fell within the “imminent danger of serious
physical harm” exception to the three strikes rule and allowed this
action to proceed to resolution on the merits of Green’s claims.
Even if it was error for the district court to count a dismissal
for failure to exhaust as a strike under § 1915(g), therefore,
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Green was not prejudiced by the district court’s finding. We thus
express no opinion as to whether the district was in error, and
proceed to examine the merits of Green’s appeal.
III.
Green next argues that the district court should not have
granted summary judgment to Defendants because a genuine issue of
material fact existed for trial as to his § 1983 action.
We review a district court’s decision to grant summary
judgment de novo, applying the standard required under Rule 56(c)
of the Federal Rules of Civil Procedure. See Wachovia Bank v. Fed.
Reserve Bank, 338 F.3d 318, 320 (4th Cir. 2003). Summary judgment
is proper “unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party. If
the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986) (internal citations
omitted). In considering a motion for summary judgment, the facts
and inferences must be viewed in the light most favorable to the
nonmoving party. See id. at 255.
We have carefully reviewed the parties’ arguments, both in
their briefs and at oral argument, and cannot find any evidence in
the record creating a genuine issue of material fact for trial.
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Therefore, for the reasons stated in the district court’s opinion,
we affirm.
AFFIRMED
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