                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-7223



GEORGE SAMUEL GREEN, JR.,

                                              Plaintiff - Appellant,

           versus


GENE M. JOHNSON; FRED SCHILLING, Health
Services Director, Virginia Department of
Corrections; ROBIN L. HULBER, Ph.D.,

                                            Defendants - Appellees,

           and


M. VERNON SMITH, M.D.,

                                                          Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.   Robert G. Doumar, Senior
District Judge. (CA-03-349)


Argued:   May 27, 2005                      Decided:   July 29, 2005


Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Neal Lawrence Walters, Charlottesville, Virginia, for
Appellant.   Richard Carson Vorhis, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees.
ON BRIEF: Berton W. Ashman, Jr., Third Year Law Student, UNIVERSITY
OF VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic,
Charlottesville, Virginia, for Appellant.       Jerry W. Kilgore,
Attorney General, Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

     Appellant George Samuel Green, Jr. appeals from the district

court’s order granting summary judgment in favor of Defendants in

his 42 U.S.C.A. § 1983 (West 2003) action.                For the reasons that

follow, we affirm.



                                     I.

     Green applied to proceed in forma pauperis and bring this

action against Defendants under § 1983.             Green alleges that he has

Hepatitis C and is being denied life-saving medical treatment.                  He

seeks both injunctive and monetary relief.

     In determining whether Green was entitled to proceed in forma

pauperis, the district court noted that the Prison Litigation

Reform Act (PLRA) prohibits a prisoner from bringing a civil action

or from appealing a judgment in a civil action “if the prisoner

has, on 3 or more prior occasions, while incarcerated or detained

in any facility, brought an action or appeal in a court of the

United   States    that    was   dismissed     on   the   grounds   that   it   is

frivolous, malicious, or fails to state a claim upon which relief

may be granted, unless the prisoner is under imminent danger of

serious physical injury.”            28 U.S.C.A. § 1915(g) (West Supp.

2005).     Under    this    statutory       provision,    the   district   court

concluded that “Plaintiff has had numerous actions dismissed on the

grounds that they are frivolous or fail to state a claim.”                  J.A.


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12.   In particular, the district court pointed to “Action Numbers

2:94cv487,     2:97cv26,         and   2:97cv937,”      as   “dismissed    for

frivolousness or failure to state a claim.”             J.A. 12-13.   In fact,

however, two of these cases were dismissed as frivolous and one was

dismissed without prejudice for failure to exhaust administrative

remedies.*     Nevertheless, the district court permitted Green to

proceed     because    “plaintiff’s     current   complaint    may    allege   a

situation that would place him in imminent danger of serious

physical harm.”       J.A. 13.    The district court determined that this

action fell within the exception to the “three strikes” rule set

forth in § 1915(g), permitting prisoners with three strikes to

proceed in forma pauperis when there is an imminent danger of

serious physical harm.           Based upon this analysis, the district

court granted Green’s request to proceed in forma pauperis.

      Defendants answered and filed a motion to dismiss or, in the

alternative, for summary judgment. After Green responded by filing

his   own   motion    for   summary    judgment   and   memorandum    opposing

Defendants’ motion, the district court granted summary judgment in

favor of Defendants. The district court found that Green failed to

provide any evidence from which a fact finder could reasonably

conclude either (1) that Green was denied adequate medical care in



      *
      Section  1997e(a)   requires  that   inmates  exhaust   all
administrative remedies before filing an in forma pauperis action
challenging prison conditions under federal law. See 42 U.S.C.A.
§ 1997e(a) (West 2003).

                                        4
violation of his rights under the Eighth Amendment against cruel

and unusual punishment or (2) that the non-medical prison officials

named as defendants, who relied on the expertise of the prison

doctors   for   Green’s   medical   treatment,   acted   with   deliberate

indifference to Green’s medical needs.

      From this judgment, Green appeals and raises two arguments.

We reject both arguments as follows.



                                    II.

      Green first challenges the district court’s determination that

a   dismissal without prejudice for want of exhaustion should count

as a “strike” under § 1915(g).            Green contends that an action

dismissed for failure to exhaust is not a suit “that was dismissed

on the grounds that it is frivolous, malicious, or fails to state

a claim upon which relief may be granted.”        28 U.S.C.A. § 1915(g).

      Whether an action dismissed for failure to exhaust under the

PLRA amounts to a “strike” under § 1915(g) is a question of

statutory construction reviewed de novo.           See United States v.

Pressley, 359 F.3d 347, 349 (4th Cir. 2004).         The district court

determined that Green fell within the “imminent danger of serious

physical harm” exception to the three strikes rule and allowed this

action to proceed to resolution on the merits of Green’s claims.

Even if it was error for the district court to count a dismissal

for failure to exhaust as a strike under § 1915(g), therefore,


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Green was not prejudiced by the district court’s finding.                  We thus

express no opinion as to whether the district was in error, and

proceed to examine the merits of Green’s appeal.



                                         III.

       Green next argues that the district court should not have

granted summary judgment to Defendants because a genuine issue of

material fact existed for trial as to his § 1983 action.

       We   review    a    district   court’s    decision    to    grant   summary

judgment de novo, applying the standard required under Rule 56(c)

of the Federal Rules of Civil Procedure.           See Wachovia Bank v. Fed.

Reserve Bank, 338 F.3d 318, 320 (4th Cir. 2003).               Summary judgment

is    proper   “unless      there   is   sufficient    evidence     favoring   the

nonmoving party for a jury to return a verdict for that party. If

the    evidence      is    merely   colorable,    or   is    not   significantly

probative, summary judgment may be granted.”                Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986) (internal citations

omitted).      In considering a motion for summary judgment, the facts

and inferences must be viewed in the light most favorable to the

nonmoving party.          See id. at 255.

       We have carefully reviewed the parties’ arguments, both in

their briefs and at oral argument, and cannot find any evidence in

the record creating a genuine issue of material fact for trial.




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Therefore, for the reasons stated in the district court’s opinion,

we affirm.

                                                         AFFIRMED




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