                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 11-6809


BERNARD MCFADDEN,

                Plaintiff – Appellant,

          v.

BERNARD MCKIE, Warden of Kirkland CI; MR. LATTER, Major of
KCI; JACKSON, FNU Major of KCI; MRS. REEVES, FNU Sergeant
of KCI; MR. THOMAS, Food Service Director of KCI; MRS.
MARSHALL, Food Services Supervisor, in their individual or
personal capacities,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.      J. Michelle Childs, District
Judge. (3:11-cv-00673-JMC)


Submitted:   January 6, 2012                 Decided:   February 7, 2012


Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Bernard McFadden, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

             Bernard      McFadden          appeals         the    district    court’s     order

adopting the magistrate judge’s report and recommendation and

denying      McFadden’s         request       to       proceed       with     his    complaint,

brought pursuant to 42 U.S.C. § 1983 (2006), without prepayment

of   fees.        Because       the    district            court    erroneously      classified

McFadden     as     a    “three-striker”               for      purposes      of    the   Prison

Litigation Reform Act (“PLRA”), we vacate the order and remand. *

             Under the PLRA, a prisoner who brings a civil action

or   an   appeal    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).        The

dismissal of an action for failure to state a claim that is

without prejudice, however, does not count as a strike under the

PLRA.     McLean v. United States, 566 F.3d 391, 395-98 (4th Cir.

2009).

             Although the three cases the district court relied on

to deny McFadden’s motion were dismissed for failure to state a

claim, each was dismissed without prejudice.                                See McFadden v.

      *
       “The denial by a District Judge of a motion to proceed in
forma pauperis is an appealable order.”    Roberts v. U.S. Dist.
Court, 339 U.S. 844, 845 (1950) (per curiam).



                                                  2
Allen, No. 3:05-0887-RBH-JRM (D.S.C. Nov. 29, 2005), aff’d, 193

F.    App’x    251     (4th   Cir.   2006);    McFadden       v.    Clarendon   Cnty.

Sheriff’s Dep’t, No. 3:00-cv-2536-MBS-JRM (D.S.C. May 22, 2001),

aff’d 20 F. App’x 207 (4th Cir. 2001); McFadden v. Land, No.

3:99-cv-3221-MBS-JRM (D.S.C. Oct. 21, 1999).                       Accordingly, they

are   not     proper    bases   on   which    to    deny   McFadden’s     motion   to

proceed without prepayment of fees.

              We   therefore    vacate   the       district    court’s    order    and

remand for reconsideration of McFadden’s motion consistent with

this court’s decision in McLean.              We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court.

                                                              VACATED AND REMANDED




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