Sylvester Richardson v. Tracy Ray, No. 10-6439 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6439 SYLVESTER A. RICHARDSON, Plaintiff - Appellant, v. WARDEN TRACY RAY; OFFICER J. BELLAMY; OFFICER INGLE, Defendants - Appellees. 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) Submitted: October 25, 2010 Decided: November 22, 2010 Before KING, GREGORY, and DUNCAN, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Sylvester A. Richardson, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit.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 strikes Prison that Richardson Litigation ( PLRA ). Reform possessed three Act, U.S.C. 28 under § 1915(g) the (2006) 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 (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 strike. 438 claim, should have counted as a qualifying See Thompson v. Drug Enforcement Admin., 492 F.3d 428, (D.C. summary neither Cir. judgment 2007) does (observing not dismissal count as of strike complaint under on 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. facts and legal We dispense with oral argument because the contentions are 2 adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED 3

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