                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7307


JOHNATHAN LEE SMITH, a/k/a Johnathan Lee X Smith,

                  Plaintiff - Appellant,

             v.

CARRIE MAYES, Director of Nurses; V. S. GRAY, Operations
Officer; MS. DABNEY, Mailroom Assistant; JANE DOE 1,
Mailroom Assistant; JANE DOE 2, Mailroom Assistant; O.
CHAMBERS, Grievance Coordinator; SECURITY OFFICER TARPLEY,
Property Control Officer; E. POWELL, Keefe Commissary
Manager,

                  Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:09-cv-00271-sgw-mfu)


Submitted:    November 12, 2009             Decided:   December 23, 2009


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Johnathan Lee Smith, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

            Johnathan Lee Smith, a.k.a., Johnathan Lee X Smith, a

Virginia inmate, appeals a district court order dismissing his

civil rights complaint without prejudice for failing to prepay

the filing fee or show that he was under imminent danger of

serious physical injury.          Because we find that some of Smith’s

claims adequately alleged he was in imminent danger of serious

physical injury, we vacate in part the court’s order and remand

for further proceedings and affirm in part.

            Under   the     Prison   Litigation      Reform   Act    of   1996

(“PLRA”),   Pub.    L.    No.   104-134,    110   Stat.   1321-71   (1996),   a

prisoner who has had three or more actions or appeals dismissed

as frivolous, malicious, or for failure to state a claim upon

which relief may be granted, may not proceed without prepayment

of fees unless he is under “imminent danger of serious physical

injury.”    28 U.S.C. § 1915(g) (2006).           Smith is such a prisoner.

Several circuit courts have held “the requisite imminent danger

of serious physical injury must exist at the time the complaint

or the appeal is filed . . . .             Moreover, the exception focuses

on the risk that the conduct complained of threatens continuing

or future injury, not on whether the inmate deserves a remedy

for past misconduct.”           Martin v. Shelton, 319 F.3d 1048, 1050

(8th Cir. 2003) (citations omitted); see also Abdul-Akbar v.

McKelvie, 239 F.3d 307, 314 (3d Cir. 2001); Medberry v. Butler,

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185 F.3d 1189, 1193 (11th Cir. 1999); Banos v. O’Guin, 144 F.3d

883, 885 (5th Cir. 1998).                An appellate court reviews de novo a

district court’s interpretation of § 1915(g) and related legal

conclusions.          Andres v. King, 398 F.3d 1113, 1118 (9th Cir.

2005); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003).

                Smith alleged in his complaint that Carrie Mayes, the

Director of Nurses at his institution, will not provide care for

his hepatitis C disease and other liver diseases, and for a

“severely       painful      inguinal       hernia”,        acute    edema,    and     for    a

“severely         painful”      herniated      disk     in    his    spine,    unless        he

acknowledges the name “Smith” instead of the name “X”.                                Taking

Smith’s allegations as true, we find he sufficiently established

he   is    in     imminent      danger    of   serious        physical      injury.       See

Ciarpaglini, 352 F.3d at 330-31 (complications arising from a

switch in medication); McAlphin v. Toney, 281 F.3d 709, 710 (8th

Cir.      2002)     (mouth      infection      due     to    lack    of    dental     care);

Gibbs v. Cross, 160 F.3d 962, 965-66 (3d Cir. 1998) (headaches

and other symptoms as a result of dust and lint exposure).

                Because    we    find    Smith       sufficiently         alleged    in   his

complaint that he was under imminent danger of serious physical

injury     with     respect      to   the     denial    of    medical       treatment,       we

vacate     in     part    the    district      court’s       order    and     remand      with

instructions that Smith be permitted to proceed forth on that

claim      without       prepayment      of    filing       fees.      Because       Smith’s

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remaining claims do not affect his risk for serious physical

injury, we affirm the court’s order in part with respect to

those claims.

           Accordingly, we affirm in part and vacate in part and

remand   with   instructions     that    Smith      be   permitted    to   proceed

under the PLRA without prepayment of fees as to his claim that

he is being denied medical treatment because he insists on using

the name “X”.      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.

                                                             AFFIRMED IN PART,
                                                              VACATED IN PART,
                                                                  AND REMANDED




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