UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6809
BERNARD MCFADDEN,
Plaintiff – Appellant,
v.
BERNARD MCKIE, Warden of Kirkland CI; MR. LATTER, Major of
KCI; JACKSON, FNU Major of KCI; MRS. REEVES, FNU Sergeant
of KCI; MR. THOMAS, Food Service Director of KCI; MRS.
MARSHALL, Food Services Supervisor, in their individual or
personal capacities,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. J. Michelle Childs, District
Judge. (3:11-cv-00673-JMC)
Submitted: January 6, 2012 Decided: February 7, 2012
Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Bernard McFadden, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard McFadden appeals the district court’s order
adopting the magistrate judge’s report and recommendation and
denying McFadden’s request to proceed with his complaint,
brought pursuant to 42 U.S.C. § 1983 (2006), without prepayment
of fees. Because the district court erroneously classified
McFadden as a “three-striker” for purposes of the Prison
Litigation Reform Act (“PLRA”), we vacate the order and remand. *
Under the PLRA, a prisoner who brings a civil action
or an appeal 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) (2006). The
dismissal of an action for failure to state a claim that is
without prejudice, however, does not count as a strike under the
PLRA. McLean v. United States, 566 F.3d 391, 395-98 (4th Cir.
2009).
Although the three cases the district court relied on
to deny McFadden’s motion were dismissed for failure to state a
claim, each was dismissed without prejudice. See McFadden v.
*
“The denial by a District Judge of a motion to proceed in
forma pauperis is an appealable order.” Roberts v. U.S. Dist.
Court, 339 U.S. 844, 845 (1950) (per curiam).
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Allen, No. 3:05-0887-RBH-JRM (D.S.C. Nov. 29, 2005), aff’d, 193
F. App’x 251 (4th Cir. 2006); McFadden v. Clarendon Cnty.
Sheriff’s Dep’t, No. 3:00-cv-2536-MBS-JRM (D.S.C. May 22, 2001),
aff’d 20 F. App’x 207 (4th Cir. 2001); McFadden v. Land, No.
3:99-cv-3221-MBS-JRM (D.S.C. Oct. 21, 1999). Accordingly, they
are not proper bases on which to deny McFadden’s motion to
proceed without prepayment of fees.
We therefore vacate the district court’s order and
remand for reconsideration of McFadden’s motion consistent with
this court’s decision in McLean. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court.
VACATED AND REMANDED
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