                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-7883


LONNIE EARL EVERETT,

                Plaintiff - Appellant,

          v.

MAJOR WHALEY; CONRAD KIRBY; SHELIA KING; NURSE BEVERLY,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:12-ct-03066-BO)


Submitted:   December 28, 2012            Decided:   January 14, 2013


Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Lonnie Earl Everett, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Lonnie Earl Everett appeals the district court’s order

dismissing his 42 U.S.C. § 1983 (2006) complaint.                                Because the

district     court    incorrectly           determined         that    Everett      has    three

qualifying        strikes       under       the       Prison     Litigation      Reform      Act

(“PLRA”), 28 U.S.C. § 1915(g) (2006), we vacate the order of

dismissal and remand.

             In concluding that Everett has three strikes under the

PLRA at the time he filed the subject complaint, the district

court relied on Everett’s two previous § 1983 actions, Everett

v. Sydnoski, No. 5:06-ct-03037-FL (E.D.N.C. Sept. 28, 2006); and

Everett    v.     Wilkerson,      No.       5:04-ct-00569-H           (E.D.N.C.     Oct.     19,

2004), and an appeal to this Court, Everett v. Wilkerson, 127 F.

App’x 670 (4th Cir. 2005) (No. 04-7933).                           We conclude that the

district     court    erred      in     finding         that   Sydnoski,      No.    5:06-ct-

03037-FL, and Wilkerson, 127 F. App’x 670, properly qualify as

strikes. *

             In     Sydnoski,         No.     5:06-ct-03037-FL,           Everett         raised

Eighth     Amendment        claims      against          numerous      prison     personnel.

After     conducting        a     frivolity            review,     the   district         court


     *
       Additionally, a search of our docket and the dockets for
the Western, Middle, and Eastern districts of North Carolina
does not reveal any additional actions or appeals that properly
qualify as strikes against Everett.



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dismissed Everett’s claims against the named defendants based on

res    judicata           and        directed        that     Everett       particularize     his

allegation of improper medical care and his claims against the

remaining unnamed defendant.                         When Everett failed to respond,

the district court dismissed his remaining claims.

             Accordingly,              because        the     district      court’s     dismissal

did not turn on an explicit determination that Everett’s entire

action failed to state a claim or was otherwise frivolous or

malicious,       it       does        not     qualify       as    a    strike.      Tolbert    v.

Stevenson, 635 F.3d 646, 651 (4th Cir. 2011); see Butler v. DOJ,

492 F.3d 440, 443-45 (D.C. Cir. 2007) (holding that, although

operating as a decision on the merits, a dismissal for failure

to prosecute does not necessarily qualify as a strike because it

is    not   a    decision             based     on    the     merits,       maliciousness,     or

frivolity of an action).

             Similarly, in Wilkerson, 127 F. App’x 670, we simply

affirmed the dismissal of Everett’s complaint as time-barred.

Because     we    made          no    independent           determination        that   Everett’s

appeal was malicious or frivolous, the district court erred in

counting this court’s disposition as a separate strike.                                       See

Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775,

780 (10th Cir. 1999) (affirmance on appeal of dismissal that

qualifies       as    a    strike       counts        only       as   one   strike);    see   also

Thompson v. DEA, 492 F.3d 428, 433 (D.C. Cir. 2007) (same).

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            Because we need not reach the issue, we decline to

consider    whether    the    dismissal    of    Everett’s     complaint    in

Wilkerson, No. 5:04-ct-00569-H, properly qualifies as a strike.

Instead, the district court may reexamine whether the dismissal

so qualifies should it be necessary to again consider Everett’s

PLRA status in a subsequent proceeding.

            Accordingly,     we   vacate   the   order    of   dismissal   and

remand for proceedings consistent with this opinion.                  We deny

Everett’s   motion    to   appoint   counsel.     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.

                                                       VACATED AND REMANDED




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