Richardson v. Ray
402 F. App'x 775
4th Cir.
2010
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Docket

Sylvester A. RICHARDSON, Plaintiff-Appellant, v. Warden Tracy RAY; Officer J. Bellamy; Officer Ingle, Defendants-Appellees.

No. 10-6439

United States Court of Appeals, Fourth Circuit

Submitted: Oct. 25, 2010. Decided: Nov. 22, 2010.

775

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Vacated and remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

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 , and the subsequent appeal, , 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 (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.