Bernard McFadden v. Bernard McKie

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cv-00673-JMC Copies to all parties and the district court/agency. [998782327]. Mailed to: Bernard McFadden. [11-6809]

Appeal: 11-6809

Document: 13

Date Filed: 02/07/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6809

BERNARD MCFADDEN,
Plaintiff – Appellant,
v.
BERNARD MCKIE, Warden of Kirkland CI; MR. LATTER, Major of
KCI; JACKSON, FNU Major of KCI; MRS. REEVES, FNU Sergeant
of KCI; MR. THOMAS, Food Service Director of KCI; MRS.
MARSHALL, Food Services Supervisor, in their individual or
personal capacities,
Defendants - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Columbia.
J. Michelle Childs, District
Judge. (3:11-cv-00673-JMC)

Submitted:

January 6, 2012

Decided:

February 7, 2012

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

Vacated and remanded by unpublished per curiam opinion.

Bernard McFadden, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-6809

Document: 13

Date Filed: 02/07/2012

Page: 2 of 3

PER CURIAM:
Bernard

McFadden

appeals

the

district

court’s

order

adopting the magistrate judge’s report and recommendation and
denying

McFadden’s

request

to

proceed

with

his

complaint,

brought pursuant to 42 U.S.C. § 1983 (2006), without prepayment
of

fees.

McFadden

Because
as

a

the

district

“three-striker”

court
for

erroneously

purposes

of

classified
the

Prison

Litigation Reform Act (“PLRA”), we vacate the order 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 upon which relief may be granted may not proceed without
prepayment
serious

of

fees

physical

unless

injury.”

he

is

under

28

U.S.C.

“imminent

§ 1915(g)

danger

(2006).

of
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).
Although the three cases the district court relied on
to deny McFadden’s motion were dismissed for failure to state a
claim, each was dismissed without prejudice.
*

See McFadden v.

“The denial by a District Judge of a motion to proceed in
forma pauperis is an appealable order.”
Roberts v. U.S. Dist.
Court, 339 U.S. 844, 845 (1950) (per curiam).

2

Appeal: 11-6809

Document: 13

Date Filed: 02/07/2012

Page: 3 of 3

Allen, No. 3:05-0887-RBH-JRM (D.S.C. Nov. 29, 2005), aff’d, 193
F.

App’x

251

(4th

Cir.

2006);

McFadden

v.

Clarendon

Cnty.

Sheriff’s Dep’t, No. 3:00-cv-2536-MBS-JRM (D.S.C. May 22, 2001),
aff’d 20 F. App’x 207 (4th Cir. 2001); McFadden v. Land, No.
3:99-cv-3221-MBS-JRM (D.S.C. Oct. 21, 1999).
are

not

proper

bases

on

which

to

deny

Accordingly, they

McFadden’s

motion

to

order

and

proceed without prepayment of fees.
We

therefore

vacate

the

district

court’s

remand for reconsideration of McFadden’s motion consistent with
this court’s decision in McLean.

We dispense with oral argument

because the facts and legal contentions are adequately presented
in the materials before this court.
VACATED AND REMANDED

3