Weidow v. Ozmint

U.S. Court of Appeals for the Fourth Circuit February 13, 2004

Opinion

No. 03-7423

Plaintiff - Appellant,

versus

Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. David C. Norton, District Judge. (CA-03-2479-03-18BD)

Submitted: January 30, 2004 Decided: February 13, 2004

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Robert T. Weidow, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Robert T. Weidow appeals the order of the district court

adopting the recommendation of the magistrate judge and dismissing

his suit filed under

42 U.S.C. § 1983

(2000). The magistrate judge

found that Weidow had three or more actions or appeals dismissed as

frivolous, malicious, or for failure to state a claim under

28 U.S.C. § 1915

(g) (2000). However, one of these, Weidow v. Richland

County Detention Center, No. 0:00-cv-2816 (D.S.C., May 25, 2001),

was terminated by a grant of summary judgment to the defendants,

and thus should not have been counted as a “strike” against Weidow.

See

28 U.S.C. § 1915

(g) (2000) (providing that a prisoner may not

proceed without prepayment of fees if, on three or more prior

occasions, he brought an action in federal court that was

“dismissed on the grounds that it is frivolous, malicious, or fails

to state a claim upon which relief may be granted”). Subtracting

this case, Weidow has only two strikes against him. We therefore

conclude that the district court erred in adopting the magistrate

judge’s recommendation.

We vacate the district court’s order and remand for

further proceedings. We express no opinion on the merits of

Weidow’s claims. 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.

- 2 -