                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-6686


BRANDON JEROD SMITH,

                Plaintiff - Appellant,

          v.

L. RAY, Medical Administrator; B. ULEP, Doctor; CYNDY
THIGPEN, Charge Nurse; JEANNE HUTCHINGS, Charge Nurse; MS.
TAYLOR,   Medical  Administrator;   MR.  GORE,   Doctor;  R.
LOCKHART, Charge Nurse; E.P. WITT, Grievance Coordinator,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Claude M. Hilton, Senior
District Judge. (1:14-cv-00122-CMH-JFA)


Submitted:   December 19, 2014             Decided:   January 14, 2015


Before NIEMEYER   and   MOTZ,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Brandon Jerod Smith, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

               Brandon Jerod Smith appeals the district court’s order

dismissing his 42 U.S.C. § 1983 (2012) complaint.                         We vacate the

district court’s determination that Smith had three qualifying

strikes       under   the     Prison     Litigation       Reform    Act    (“PLRA”),      28

U.S.C. § 1915(g) (2012), and remand for further proceedings.

               In concluding that Smith had three strikes under the

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

court     relied      on    three    of     Smith’s    previously         filed    §   1983

actions: Smith v. Chilcote, No. 1:13-cv-01173-CMH-TRJ (E.D. Va.

Feb.    12,    2014);      Smith    v.    Bendrick,       No.   1:12-cv-00759-CMH-JFA

(E.D. Va. Oct. 11, 2012); and Smith v. Reagan, No. 1:10-cv-

01354-CMH-IDD (E.D. Va. Jan. 24, 2011).                         We conclude, however,

that     Chilcote,         No.   1:13-cv-01173-CMH-TRJ,            did    not     properly

qualify as a strike at the time Smith filed his complaint.

               Smith filed the subject complaint on February 5, 2014,

one week before the district court dismissed his § 1983 action

in    Chilcote.        Smith     appealed     the     dismissal     in    Chilcote;       the

appeal was pending in this court at the time the district court

dismissed the underlying complaint for failure to prepay the

filing    fees.        Because      Smith    had    not    exhausted      his     right    to

appeal in Chilcote, it did not qualify as a strike at the time

the    district       court      dismissed    this     action.       See     Henslee       v.

Keller, 681 F.3d 538, 543 (4th Cir. 2012).

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             Even if Smith is found, on remand, to have amassed

three strikes, however, he may proceed without prepayment of

fees    if   he   is   under    “imminent       danger      of     serious    physical

injury.”      28 U.S.C. § 1915(g); see Ciarpaglini v. Saini, 352

F.3d 328, 330 (7th Cir. 2003); McAlphin v. Toney, 281 F.3d 709,

710 (8th Cir. 2002); Gibbs v. Cross, 160 F.3d 962, 965-66 (3d

Cir. 1998).       Smith alleged that he is suffering from chest pain

and heart palpitations, and has been coughing up blood on a

daily   basis     since   December      2013.         He   further      asserted    that

prison officials       have    refused    to    treat      him    for    these   issues

despite his complaints.             These assertions support a conclusion

that Smith is under imminent danger of serious physical injury.

             Accordingly,      we    vacate     the    order      of    dismissal    and

remand for proceedings.             We dispense with oral argument because

the facts and legal contentions are adequately presented in the

material     before    this    court     and    argument         will   not   aid    the

decisional process.

                                                             VACATED AND REMANDED




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