UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7883
LONNIE EARL EVERETT,
Plaintiff - Appellant,
v.
MAJOR WHALEY; CONRAD KIRBY; SHELIA KING; NURSE BEVERLY,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:12-ct-03066-BO)
Submitted: December 28, 2012 Decided: January 14, 2013
Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Lonnie Earl Everett, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lonnie Earl Everett appeals the district court’s order
dismissing his 42 U.S.C. § 1983 (2006) complaint. Because the
district court incorrectly determined that Everett has three
qualifying strikes under the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(g) (2006), we vacate the order of
dismissal and remand.
In concluding that Everett has three strikes under the
PLRA at the time he filed the subject complaint, the district
court relied on Everett’s two previous § 1983 actions, Everett
v. Sydnoski, No. 5:06-ct-03037-FL (E.D.N.C. Sept. 28, 2006); and
Everett v. Wilkerson, No. 5:04-ct-00569-H (E.D.N.C. Oct. 19,
2004), and an appeal to this Court, Everett v. Wilkerson, 127 F.
App’x 670 (4th Cir. 2005) (No. 04-7933). We conclude that the
district court erred in finding that Sydnoski, No. 5:06-ct-
03037-FL, and Wilkerson, 127 F. App’x 670, properly qualify as
strikes. *
In Sydnoski, No. 5:06-ct-03037-FL, Everett raised
Eighth Amendment claims against numerous prison personnel.
After conducting a frivolity review, the district court
*
Additionally, a search of our docket and the dockets for
the Western, Middle, and Eastern districts of North Carolina
does not reveal any additional actions or appeals that properly
qualify as strikes against Everett.
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dismissed Everett’s claims against the named defendants based on
res judicata and directed that Everett particularize his
allegation of improper medical care and his claims against the
remaining unnamed defendant. When Everett failed to respond,
the district court dismissed his remaining claims.
Accordingly, because the district court’s dismissal
did not turn on an explicit determination that Everett’s entire
action failed to state a claim or was otherwise frivolous or
malicious, it does not qualify as a strike. Tolbert v.
Stevenson, 635 F.3d 646, 651 (4th Cir. 2011); see Butler v. DOJ,
492 F.3d 440, 443-45 (D.C. Cir. 2007) (holding that, although
operating as a decision on the merits, a dismissal for failure
to prosecute does not necessarily qualify as a strike because it
is not a decision based on the merits, maliciousness, or
frivolity of an action).
Similarly, in Wilkerson, 127 F. App’x 670, we simply
affirmed the dismissal of Everett’s complaint as time-barred.
Because we made no independent determination that Everett’s
appeal was malicious or frivolous, the district court erred in
counting this court’s disposition as a separate strike. See
Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775,
780 (10th Cir. 1999) (affirmance on appeal of dismissal that
qualifies as a strike counts only as one strike); see also
Thompson v. DEA, 492 F.3d 428, 433 (D.C. Cir. 2007) (same).
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Because we need not reach the issue, we decline to
consider whether the dismissal of Everett’s complaint in
Wilkerson, No. 5:04-ct-00569-H, properly qualifies as a strike.
Instead, the district court may reexamine whether the dismissal
so qualifies should it be necessary to again consider Everett’s
PLRA status in a subsequent proceeding.
Accordingly, we vacate the order of dismissal and
remand for proceedings consistent with this opinion. We deny
Everett’s motion to appoint counsel. 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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