Charles Cassell, III v. Dawkins , 592 F. App'x 207 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6116
CHARLES M. CASSELL, III,
Plaintiff – Appellant,
v.
DAWKINS; QUEEN, Officer; JOHN DOES, Shift Sergeants on Red
Unit Lock Up,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Robert J. Conrad,
Jr., District Judge. (5:10-cv-00191-RJC)
Submitted: January 27, 2015 Decided: February 5, 2015
Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Charles M. Cassell, III, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Cassell appeals from the district court’s
order dismissing this action pursuant to 28 U.S.C. § 1915(g)
(2012). One of the cases identified by the district court as
qualifying as a “strike” under § 1915(g) was Cassell v. Grant,
No. 2:04-cv-348 (S.D. Oh. May 3, 2004). Subsequent to entry of
the district court’s order, we held that, for a dismissal to
qualify as a “strike” under § 1915(g), the entire action must be
dismissed as frivolous or malicious or for failure to state a
claim. Tolbert v. Stevenson, 635 F.3d 646 (4th Cir. 2011).
Grant was dismissed partly on statute of limitations grounds and
partly for failure to state a claim. Under Tolbert, Grant does
not qualify as a strike. Accordingly, we vacate the judgment of
the district court and remand for further proceedings. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument would not aid the decisional process. *
VACATED AND REMANDED
*
On May 20, 2011, we entered an order identifying Cassell
as a three-striker and ordering him to pay the filing fee in
this appeal. Cassell moved for reconsideration, and we denied
the motion on July 26, 2011. Subsequently, we discovered that
we had improperly designated Cassell as a three-striker. We
then granted Cassell’s motion to reopen this appeal and to
proceed under the PLRA without prepayment of fees.
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