                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6439


SYLVESTER A. RICHARDSON,

                Plaintiff - Appellant,

          v.

WARDEN TRACY RAY; OFFICER J. BELLAMY; OFFICER INGLE,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       James C. Turk, Senior
District Judge. (7:10-cv-00078-jct-mfu)


Submitted:   October 25, 2010            Decided:   November 22, 2010


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Sylvester A. Richardson, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

               Sylvester A. Richardson appeals the district court’s

order dismissing his 42 U.S.C. § 1983 (2006) complaint without

prejudice for failure to pay the filing fee.                    The district court

determined      that     Richardson      possessed    three    strikes    under    the

Prison       Litigation     Reform    Act,      28    U.S.C.    § 1915(g)     (2006)

(“PLRA”).       However, examination of the district court’s order in

Richardson v. Grizzard, No. 7:91-cv-00001 (W.D. Va. July 18,

1991), and the subsequent appeal, Richardson v. Grizzard, No.

91-7208 (4th Cir. Jan. 14, 1992), reveals that the action was

dismissed on summary judgment and that the appeal was dismissed

for being without merit.              Because neither the action nor the

appeal was dismissed as frivolous, malicious, or for failure to

state    a    claim,    neither    should      have   counted    as   a   qualifying

strike.       See Thompson v. Drug Enforcement Admin., 492 F.3d 428,

438     (D.C.   Cir.     2007)    (observing       dismissal     of   complaint    on

summary       judgment     does    not     count      as   strike     under   PLRA).

Accordingly, we vacate the district court’s finding that the

decisions in Richardson v. Grizzard constituted strikes against

Richardson.       We remand for further consideration of Richardson’s

PLRA application.          We dispense with oral argument because the

facts    and    legal    contentions      are   adequately      presented     in   the




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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                    VACATED AND REMANDED




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