Gary Williams v. David Simmon

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UNPUBLISHED PER CURIAM OPINION filed.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]

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Appeal: 11-6796 Document: 24 Date Filed: 04/25/2012 Page: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6796 GARY B. WILLIAMS, Plaintiff – Appellant, v. DAVID L. SIMMONS, Superintendent, Western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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 11-6796 Document: 24 Date Filed: 04/25/2012 Page: 3 of 4 PER CURIAM: Gary orders Buterra denying his Williams request to appeals the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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