Summary
finding that dismissal of an action on summary judgment did not count as a strike
Summary of this case from Tolbert v. StevensonOpinion
No. 10-6439.
Submitted: October 25, 2010.
Decided: November 22, 2010.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (7:10-cv-00078-jct-mfu).
Sylvester A. Richardson, Appellant Pro Se.
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Sylvester A. Richardson appeals the district court's order dismissing his 42 U.S.C. § 1983 (2006) complaint without prejudice for failure to pay the filing fee. The district court determined that Richardson possessed three strikes under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g) (2006) ("PLRA"). However, examination of the district court's order in Richardson v. Grizzard, No. 7:91-cv-00001 (W.D.Va. July 18, 1991), and the subsequent appeal, Richardson v. Grizzard No. 91-7208, 1992 WL 4245 (4th Cir. January 14, 1992), reveals that the action was dismissed on summary judgment and that the appeal was dismissed for being without merit. Because neither the action nor the appeal was dismissed as frivolous, malicious, or for failure to state a claim, neither should have counted as a qualifying strike. See Thompson v. Drug Enforcement Admin., 492 F.3d 428, 438 (D.C. Cir. 2007) (observing dismissal of complaint on summary judgment does not count as strike under PLRA). Accordingly, we vacate the district court's finding that the decisions in Richardson v. Grizzard constituted strikes against Richardson. We remand for further consideration of Richardson's PLRA application. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
VACATED AND REMANDED.