Ya Simba v. Wendy Branch

Filing 920090504

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7122

YA JELANI SIMBA, Plaintiff - Appellant, v. WENDY BRANCH, Unit Manager - Blue Unit; DONALD G. WOOD, Superintendent, Scotland Corr. Inst.; FREDERICK B. HUBBARD, Asst. Supt. For Security and Operations; GARY CRUTCHFIELD, Asst. Supt. Programs; MARY WYATT, Unit Manager, Red Unit; ISAAC BALDWIN, Asst. Unit Manager, Blue Unit; SERGEANT BARNHILL, Prison Guard, Blue Unit; SERGEANT PRUDE, Prison Guard, Blue Unit; LINDA GLOVER, Sergeant Prison Guard, Blue Unit; DARLENE CAPEL, Sergeant Prison Guard, Blue Unit; HENRY JOHNSON, Sergeant Prison Guard, Blue Unit; PAUL GALLOWAY, Sergeant Prison Guard, Blue Unit; THEODIS BECK, Secretary, NC DOC; BOYD BENNETT, Director of Prisons; ELLIOTT ALFORD, Prison Guard, Blue Unit; M. BELLAMY, Prison Guard, Blue Unit; P. BERGMAN, Prison Guard, Blue Unit; ANN BETHEA, Prison Guard, Blue Unit; JAMES CAUDDER, Prison Guard, Blue Unit; B. DIXON, Prison Guard, Blue Unit; MS. DUNSTON, Prison Guard, Blue Unit; JANICE FARMER, Prison Guard, Blue Unit; MS. HUDSON, Prison Guard, Blue Unit; G. HUNT, Prison Guard, Blue Unit; MS. HUNT, Prison Guard, Blue Unit; CONSTANCE LOCKLEAR, Prison Guard, Blue Unit; JOSHUA LOCKLEAR, Prison Guard, Blue Unit; KIMBERLY LOCKLEAR, Prison Guard, Blue Unit; TAWANNA LOCKLEAR, Prison Guard, Blue Unit; SHANNON MAPLES, Prison Guard, Blue Unit; THOMAS MEEKINS; SUSAN MORRISON, Prison Guard, Blue Unit; R. SMITH, Prison Guard, Blue Unit; K. SPEIGHT, Prison Guard, Blue Unit; T. TYNER, Prison Guard, Blue Unit; SPURGEON WILBORN, Prison Guard, Blue Unit, Defendants - Appellees.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cv-00712-JAB-WWD)

Submitted:

April 8, 2009

Decided:

May 4, 2009

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

Affirmed opinion.

in

part;

vacated

in

part

by

unpublished

per

curiam

Ya Jelani Simba, Appellant Pro Se. Assistant Attorney General, Raleigh, Appellees.

James North

Philip Allen, Carolina, for

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Ya adopting dismissing the Jelani Simba appeals of the the § 1983 district court's judge order and as

recommendation 42 U.S.C.

magistrate (2000)

Simba's

complaint

frivolous or for failure to state a claim. and vacate in part.

We affirm in part

Having thoroughly reviewed the record, we conclude the district court erred when it found Simba possessed three strikes under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g)

(2006) ("PLRA").

Examination of the district court's order in

Horne v. Martin, No. 5:89-CT-393-BR (E.D.N.C. Nov. 13, 1989), reveals that Simba, under his former name, Joseph Shaw, was

denied the right to proceed in forma pauperis, and the action was ultimately dismissed because he failed to remit the required filing fee. Thus, because the action was not dismissed as

frivolous, malicious, or for failure to state a claim, it should not have counted as a qualifying strike. Accordingly, we vacate

the district court's finding that Simba has three strikes under the PLRA. We affirm the Simba the remainder of No. of a the district court's

order,

including See

imposition v. Branch,

limited

pre-filing

injunction.

1:07-cv-00712-JAB-WWD

(M.D.N.C. June 17, 2008). We dispense with oral argument because the facts and legal contentions are adequately 3 presented in the materials

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED IN PART; VACATED IN PART

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