Gary Williams v. David Simmons , 471 F. App'x 205 ( 2012 )


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  •                               UNPUBLISHED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    Vacated and remanded by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.
    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
    4
    

Document Info

Docket Number: 11-6796

Citation Numbers: 471 F. App'x 205

Judges: Gregory, Motz, Per Curiam, Wilkinson

Filed Date: 4/25/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023