Mark Lowe v. Virginia Dept of Social Svc

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to amend/correct [999830518-2]; granting Motion to proceed in forma pauperis (FRAP 24) [999797275-2] Originating case number: 3:15-cv-00535-HEH. Copies to all parties and the district court/agency. [999864665]. Mailed to: M. Lowe. [16-6540]

Appeal: 16-6540

Doc: 14

Filed: 06/23/2016

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6540

MARK MADISON LOWE,
Petitioner - Appellant,
v.
VIRGINIA DEPARTMENT OF SOCIAL SERVICES; PONNETTE SMITH,
Respondents - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:15-cv-00535-HEH)

Submitted:

June 21, 2016

Decided:

June 23, 2016

Before DUNCAN, KEENAN, and THACKER, Circuit Judges.

Affirmed as modified by unpublished per curiam opinion.

Mark Madison Lowe, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 16-6540

Doc: 14

Filed: 06/23/2016

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PER CURIAM:
Mark

Madison

Lowe

appeals

the

district

court’s

orders

dismissing his petition for a writ of mandamus as frivolous and
denying reconsideration.
no reversible error.

We have reviewed the record and find

Accordingly, we grant Lowe’s motions to

proceed in forma pauperis and amend his informal brief, and we
affirm for the reasons stated by the district court.
Va.

Dep’t

of

Soc.

Servs.,

No.

Mar. 16, 2016; Apr. 13, 2016).

3:15-cv-00535-HEH

Lowe v.
(E.D.

Va.

However, because the district

court dismissed Lowe’s petition for lack of jurisdiction, we
modify

the

dismissal

order

to

reflect

that

the

dismissal

is

without prejudice and, thus, does not qualify as a strike under
28

U.S.C.

§ 1915(g)

(2012).

See

Moore

v.

Maricopa

Cty.

Sheriff’s Office, 657 F.3d 890, 893 (9th Cir. 2011) (holding
that dismissal for lack of subject matter jurisdiction does not
qualify as strike); McLean v. United States, 566 F.3d 391, 397
(4th Cir. 2009) (holding that dismissal without prejudice for
failure to state claim does not qualify as strike).

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.

AFFIRMED AS MODIFIED

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