Gary Williams v. David Simmons
Gary Williams v. David Simmons
Opinion
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); *206 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 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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