                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-2411


IRVING E. TWITTY,

                Plaintiff - Appellant,

          v.

NATIONWIDE INSURANCE COMPANY; PATRICIA DUGAN, CPCU AiC;
CHERYLON DEAN, Claims Invest; DENNIS GILLILAN, Claims
Manager; ALECIA CORNELIUS, Regulator; WANDA W. SMITH;
TIJUANA L. CRISP; OWNER OF JEEP GRAND CHEROKEE JEEP;
GEOFFREY W. GIBBON, Attorney at Law; GRENVILLE D. MORGAN,
JR., Attorney at Law; JOHN C. FEW, Circuit Court Judge,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.      R. Bryan Harwell, District
Judge. (6:09-cv-02381-RBH)


Submitted:   May 6, 2011                     Decided:   May 24, 2011


Before WILKINSON, KEENAN, and WYNN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Irving E. Twitty, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

            Irving     E.    Twitty       appeals         from     the    district      court’s

order     accepting       the       magistrate           judge’s     recommendation         and

concluding that Twitty had three prior actions dismissed on the

ground that they were frivolous, malicious, or failed to state a

claim     upon    which     relief        may       be    granted        under   the     Prison

Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(b) (2006).                                 If

an applicant has had three actions or appeals so dismissed, the

applicant may not proceed without prepayment of fees unless the

applicant is under “imminent danger of serious physical injury.”

28 U.S.C. § 1915(g) (2006).

            The     district         court      relied       on    the     following      three

actions    as     forming       a    basis      for       Twitty’s       three   such     prior

dismissals: (1) Twitty v. Petty, No. 3:00-47-DWS (D.S.C. Feb.

24,   2000);     (2)   Twitty        v.   Stevens,         No.    7:00-2615-DWS         (D.S.C.

Sept. 20, 2000); and (3) Twitty v. Werner, et al. (D.S.C. Jan.

9, 2002). 1 (R. 10 at 2).                 Each of these cases, however, was

dismissed without prejudice and therefore cannot qualify as a

predicate strike under the PLRA.                         See McLean v. United States,

566 F.3d 391, 395 (4th Cir. 2009) (noting the dismissal of an

action without prejudice for failure to state a claim may not

count as a “strike” under the PLRA).

      1
       Independent research reveals this could be Case No. 7:01-
4131-19BG.2.


                                                2
           Accordingly,    we   vacate   the   district   court’s   order

finding that the above dismissals constituted strikes against

Twitty.    We remand for further consideration of Twitty’s PLRA

application in accordance with this opinion and McLean. 2             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




     2
       In her report and recommendation, the magistrate judge
noted that Twitty had filed 16 previous actions in that court.



                                     3
