UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6796
GARY B. WILLIAMS,
Plaintiff – Appellant,
v.
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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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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
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