UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7122
YA JELANI SIMBA,
Plaintiff - Appellant,
v.
WENDY BRANCH, Unit Manager - Blue Unit; DONALD G. WOOD,
Superintendent, Scotland Corr. Inst.; FREDERICK B. HUBBARD,
Asst. Supt. For Security and Operations; GARY CRUTCHFIELD,
Asst. Supt. Programs; MARY WYATT, Unit Manager, Red Unit;
ISAAC BALDWIN, Asst. Unit Manager, Blue Unit; SERGEANT
BARNHILL, Prison Guard, Blue Unit; SERGEANT PRUDE, Prison
Guard, Blue Unit; LINDA GLOVER, Sergeant Prison Guard, Blue
Unit; DARLENE CAPEL, Sergeant Prison Guard, Blue Unit; HENRY
JOHNSON, Sergeant Prison Guard, Blue Unit; PAUL GALLOWAY,
Sergeant Prison Guard, Blue Unit; THEODIS BECK, Secretary,
NC DOC; BOYD BENNETT, Director of Prisons; ELLIOTT ALFORD,
Prison Guard, Blue Unit; M. BELLAMY, Prison Guard, Blue
Unit; P. BERGMAN, Prison Guard, Blue Unit; ANN BETHEA,
Prison Guard, Blue Unit; JAMES CAUDDER, Prison Guard, Blue
Unit; B. DIXON, Prison Guard, Blue Unit; MS. DUNSTON, Prison
Guard, Blue Unit; JANICE FARMER, Prison Guard, Blue Unit;
MS. HUDSON, Prison Guard, Blue Unit; G. HUNT, Prison Guard,
Blue Unit; MS. HUNT, Prison Guard, Blue Unit; CONSTANCE
LOCKLEAR, Prison Guard, Blue Unit; JOSHUA LOCKLEAR, Prison
Guard, Blue Unit; KIMBERLY LOCKLEAR, Prison Guard, Blue
Unit; TAWANNA LOCKLEAR, Prison Guard, Blue Unit; SHANNON
MAPLES, Prison Guard, Blue Unit; THOMAS MEEKINS; SUSAN
MORRISON, Prison Guard, Blue Unit; R. SMITH, Prison Guard,
Blue Unit; K. SPEIGHT, Prison Guard, Blue Unit; T. TYNER,
Prison Guard, Blue Unit; SPURGEON WILBORN, Prison Guard,
Blue Unit,
Defendants - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cv-00712-JAB-WWD)
Submitted: April 8, 2009 Decided: May 4, 2009
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated in part by unpublished per curiam
opinion.
Ya Jelani Simba, Appellant Pro Se. James Philip Allen,
Assistant Attorney General, Raleigh, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Ya Jelani Simba appeals the district court’s order
adopting the recommendation of the magistrate judge and
dismissing Simba’s 42 U.S.C. § 1983 (2000) complaint as
frivolous or for failure to state a claim. We affirm in part
and vacate in part.
Having thoroughly reviewed the record, we conclude the
district court erred when it found Simba possessed three strikes
under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g)
(2006) (“PLRA”). Examination of the district court’s order in
Horne v. Martin, No. 5:89-CT-393-BR (E.D.N.C. Nov. 13, 1989),
reveals that Simba, under his former name, Joseph Shaw, was
denied the right to proceed in forma pauperis, and the action
was ultimately dismissed because he failed to remit the required
filing fee. Thus, because the action was not dismissed as
frivolous, malicious, or for failure to state a claim, it should
not have counted as a qualifying strike. Accordingly, we vacate
the district court’s finding that Simba has three strikes under
the PLRA. We affirm the remainder of the district court’s
order, including the imposition of a limited pre-filing
injunction. See Simba v. Branch, No. 1:07-cv-00712-JAB-WWD
(M.D.N.C. June 17, 2008).
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED IN PART;
VACATED IN PART
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