                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 08-7122


YA JELANI SIMBA,

               Plaintiff - Appellant,

          v.

WENDY BRANCH, Unit Manager - Blue Unit; DONALD G. WOOD,
Superintendent, Scotland Corr. Inst.; FREDERICK B. HUBBARD,
Asst. Supt. For Security and Operations; GARY CRUTCHFIELD,
Asst. Supt. Programs; MARY WYATT, Unit Manager, Red Unit;
ISAAC BALDWIN, Asst. Unit Manager, Blue Unit; SERGEANT
BARNHILL, Prison Guard, Blue Unit; SERGEANT PRUDE, Prison
Guard, Blue Unit; LINDA GLOVER, Sergeant Prison Guard, Blue
Unit; DARLENE CAPEL, Sergeant Prison Guard, Blue Unit; HENRY
JOHNSON, Sergeant Prison Guard, Blue Unit; PAUL GALLOWAY,
Sergeant Prison Guard, Blue Unit; THEODIS BECK, Secretary,
NC DOC; BOYD BENNETT, Director of Prisons; ELLIOTT ALFORD,
Prison Guard, Blue Unit; M. BELLAMY, Prison Guard, Blue
Unit; P. BERGMAN, Prison Guard, Blue Unit; ANN BETHEA,
Prison Guard, Blue Unit; JAMES CAUDDER, Prison Guard, Blue
Unit; B. DIXON, Prison Guard, Blue Unit; MS. DUNSTON, Prison
Guard, Blue Unit; JANICE FARMER, Prison Guard, Blue Unit;
MS. HUDSON, Prison Guard, Blue Unit; G. HUNT, Prison Guard,
Blue Unit; MS. HUNT, Prison Guard, Blue Unit; CONSTANCE
LOCKLEAR, Prison Guard, Blue Unit; JOSHUA LOCKLEAR, Prison
Guard, Blue Unit; KIMBERLY LOCKLEAR, Prison Guard, Blue
Unit; TAWANNA LOCKLEAR, Prison Guard, Blue Unit; SHANNON
MAPLES, Prison Guard, Blue Unit; THOMAS MEEKINS; SUSAN
MORRISON, Prison Guard, Blue Unit; R. SMITH, Prison Guard,
Blue Unit; K. SPEIGHT, Prison Guard, Blue Unit; T. TYNER,
Prison Guard, Blue Unit; SPURGEON WILBORN, Prison Guard,
Blue Unit,

               Defendants - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.     James A. Beaty, Jr.,
Chief District Judge. (1:07-cv-00712-JAB-WWD)


Submitted:      April 8, 2009                         Decided:    May 4, 2009


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


Affirmed   in    part;   vacated   in   part   by   unpublished   per   curiam
opinion.


Ya Jelani Simba, Appellant Pro Se.                    James   Philip Allen,
Assistant  Attorney General, Raleigh,                North    Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Ya    Jelani    Simba       appeals       the    district            court’s       order

adopting       the       recommendation           of     the        magistrate            judge     and

dismissing          Simba’s     42     U.S.C.          § 1983           (2000)      complaint        as

frivolous or for failure to state a claim.                                    We affirm in part

and vacate in part.

               Having thoroughly reviewed the record, we conclude the

district court erred when it found Simba possessed three strikes

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

(2006) (“PLRA”).            Examination of the district court’s order in

Horne v. Martin, No. 5:89-CT-393-BR (E.D.N.C. Nov. 13, 1989),

reveals    that      Simba,     under       his       former    name,         Joseph      Shaw,    was

denied the right to proceed in forma pauperis, and the action

was ultimately dismissed because he failed to remit the required

filing    fee.        Thus,     because      the       action       was       not    dismissed      as

frivolous, malicious, or for failure to state a claim, it should

not have counted as a qualifying strike.                            Accordingly, we vacate

the district court’s finding that Simba has three strikes under

the   PLRA.         We   affirm      the    remainder          of       the    district       court’s

order,     including          the     imposition          of        a     limited         pre-filing

injunction.           See     Simba    v.    Branch,       No.          1:07-cv-00712-JAB-WWD

(M.D.N.C. June 17, 2008).

               We dispense with oral argument because the facts and

legal    contentions          are     adequately         presented            in    the    materials

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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                        AFFIRMED IN PART;
                                                          VACATED IN PART




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