UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6978
GARY BUTERRA WILLIAMS,
Plaintiff – Appellant,
v.
CIRCUIT COURT FOR CITY OF SUFFOLK,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:11-cv-00125-HEH)
Submitted: February 22, 2012 Decided: March 2, 2012
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge
Vacated and remanded by unpublished per curiam opinion.
Gary Buterra Williams, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Buterra Williams appeals the district court’s
order dismissing his petition for removal of the state
prosecution against him pursuant to 28 U.S.C. § 1443 (2006), for
failure to pay the filing fee. As we conclude that the district
court erred in finding that Williams was a “three-striker,” we
vacate the district court’s order and remand.
Under the Prison Litigation Reform Act (“PLRA”), 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) (2006). However, dismissal of an
action without prejudice for failure to state a claim does not
count as a “strike” under the PLRA. McLean v. United States,
566 F.3d 391, 396-97 (4th Cir. 2009).
Here, the district court relied on three 42 U.S.C.
§ 1983 (2006) suits instituted by Williams in finding that he
was a “three-striker” — Williams v. Vliet, 3:05-cv-621 (E.D. Va.
June 8, 2006), Williams v. Cavedo, 3:05-cv-842 (E.D. Va.
Feb. 23, 2006), and Williams v. City of Richmond, 3:04-cv-747
(E.D. Va. Aug. 17, 2005). City of Richmond, however, was
dismissed without prejudice for failure to state a claim for
relief and, therefore, cannot be relied upon in finding Williams
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a “three-striker.” Moreover, while Williams has had many other
cases dismissed by the district court and other district courts,
our review of these cases has failed to yield another qualifying
dismissal.
We therefore conclude that the district court erred in
finding that Williams had sustained three strikes under the
PLRA. Accordingly, we vacate the district court’s order and
remand for a determination of whether removal was proper under
§ 1443. See, e.g., Northrup v. North Carolina, 2012 WL 19807
(4th Cir. Jan. 5, 2012) (unpublished). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
VACATED AND REMANDED
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