                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-7924


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

                Plaintiff - Appellant,

          v.

LAWRENCE WANG, M.D.; A. GILES, Nurse; P. MCHALKO, Nurse; D.
GILES, Nurse; C. WATSON, Unit Manager; M. SMITH, Sergeant of
Security; J. LUTHER, Officer; K. UNDERWOOD, Officer; J.
MORRISON, Officer; P. PAGET, Officer; J. BRUMFIELD, Officer;
S.    FARMER,    Rehabilitation   Counselor;    V.    BRYON,
Rehabilitation Counselor; JEFFREY DILLMAN, Warden; JOHN
GARMAN, Regional Director,

                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-00370-sgw-mfu)


Submitted:   February 24, 2010            Decided:   March 17, 2010


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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    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    Smith       adequately         alleged       he    was     in    imminent

danger of serious physical injury, we vacate the court’s order

and remand for further proceedings.

            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).                     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, 185 F.3d 1189,

1193 (11th Cir. 1999); Banos v. O’Guin, 144 F.3d 883, 885 (5th

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Cir.   1998).         An   appellate       court         reviews    de     novo    a   district

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

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

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

             Smith alleged in his complaint that Dr. Wang knowingly

failed to schedule him for a follow-up scan to determine whether

what   was    observed       in   a    prior        scan     was    stable        or   growing,

suggesting      the    presence       of    a       tumor.         He    also     faulted     the

remaining Defendants for exposing him to second-hand cigarette

smoke and for not providing reasonable medical care to treat his

medical issues, such as nose bleeds and headaches, caused by

such exposure.

             Taking        Smith’s     allegations           as     true,       we     find   he

sufficiently established he is in imminent danger of serious

physical injury.            See Ciarpaglini v. Saini, 352 F.3d 328 (7th

Cir. 2003) (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 (3rd Cir. 1988) (headaches and other symptoms as a

result of dust and lint exposure).

             Accordingly,         because           we     find         Smith     sufficiently

alleged in his complaint that he was under imminent danger of

serious physical injury, we vacate the district court’s order

and remand with instructions that Smith be permitted to proceed

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under the PLRA without prepayment of fees.                 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




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