Gary Williams v. David Simmons

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6796

GARY B. WILLIAMS,

Plaintiff – Appellant,

DAVID L. SIMMONS, Superintendent, Western Tidewater
Regional Jail; MASKELONY, Mr., Captain, Director of
Security, Western Tidewater Regional Jail; RUSSELL MOULTON,
Mr., Sergeant, Jail Guard, Western Tidewater Regional Jail;
BOONE, Mr., Detective, Franklin Police Department; BUTTS,
Mr., Detective, Franklin Police Department; MICHAEL
ROSENBERGER, Mr., State Appointed Attorney; CIRCUIT COURT
FOR THE CITY OF FRANKLIN; EASON, Mr., Judge, Suffolk
Circuit Court; REBECCA S. COLAW, Ms., State Appointed
Attorney; E. PRESTON GRISSOM, Mr., Substitute Judge ?,
Imposter ?, Suffolk Circuit Court; GREGORY MATTHEWS, Mr.,
State Appointed Counsel (Stand By); MILLER, Mr.,
Classification Officer, Jail Staff, Western Tidewater
Regional Jail; E. C. HARRIS, Mr., Chief Investigator for
the Suffolk Commonwealth Attorney's Office; ERIC MATTHEW
HURT, U.S. Attorney for the Eastern District of Virginia;
ROBERT BRADENHAM, U.S. Attorney for the Eastern District of
Virginia; UNITED STATES MARSHALS SERVICE; DIRECTOR OF THE
UNITED STATES MARSHALS SERVICE,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:11-cv-00311-HEH)

Submitted: April 18, 2012 Decided: April 25, 2012
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Gary Buterra Williams, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Gary Buterra Williams appeals the district court’s

orders denying his request to proceed with his complaint,

brought pursuant to 42 U.S.C. § 1983 (2006), without prepayment

of fees and dismissing the action without prejudice. Because

the district court erroneously classified Williams as a

“three-striker” for purposes of the Prison Litigation Reform Act

(“PLRA”), we vacate the orders 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 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).

Only two of the three cases the district court relied

on to deny Williams’s PLRA motion constituted strikes for

purposes of the PLRA. See Williams v. Vliet, No. 3:05-cv-00621

(E.D. Va. June 8, 2006); Williams v. Cavedo, No. 3:05-cv-00842

(E.D. Va. Feb. 23, 2006). While the third case was dismissed

based on the district court’s conclusion that Williams failed to

state a claim for relief as to each of his claims, the dismissal

3
was without prejudice. Williams v. City of Richmond, No.

3:04-cv-00747 (E.D. Va. Aug. 17, 2005). Accordingly, pursuant

to McLean, we conclude that City of Richmond does not count as a

qualifying strike for purposes of the PLRA.

We therefore vacate the district court’s orders and

remand for further consideration. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

VACATED AND REMANDED