Richardson v. Ray

402 F. App'x 775

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 22, 2010
• Docket: 10-6439
• Status: Unpublished

Opinion

Vacated and remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.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 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. Jan.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.