Gary Williams v. David Simmon
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cv-00311-HEH. Copies to all parties and the district court/agency. [998839730]. Mailed to: Gary Buterra Williams. [11-6796]
Appeal: 11-6796
Document: 24
Date Filed: 04/25/2012
Page: 1 of 4
UNPUBLISHED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
Appeal: 11-6796
Document: 24
Date Filed: 04/25/2012
Page: 2 of 4
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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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Appeal: 11-6796
Document: 24
Date Filed: 04/25/2012
Page: 3 of 4
PER CURIAM:
Gary
orders
Buterra
denying
his
Williams
request
to
appeals
the
proceed
with
district
his
court’s
complaint,
brought pursuant to 42 U.S.C. § 1983 (2006), without prepayment
of fees and dismissing the action without prejudice.
the
district
court
erroneously
classified
Because
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.”
§ 1915(g) (2006).
28 U.S.C.
The dismissal of an action for failure to
state a claim that is without prejudice, however, does not count
McLean v. United States, 566 F.3d
as a strike under the PLRA.
391, 395-98 (4th Cir. 2009).
Only two of the three cases the district court relied
on
to
deny
Williams’s
purposes of the PLRA.
PLRA
motion
constituted
strikes
for
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
Appeal: 11-6796
was
Document: 24
without
Date Filed: 04/25/2012
prejudice.
Williams
Page: 4 of 4
v.
City
3:04-cv-00747 (E.D. Va. Aug. 17, 2005).
of
Richmond,
No.
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
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