Brandon Smith v. L. Ray , 590 F. App'x 232 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6686
BRANDON JEROD SMITH,
Plaintiff - Appellant,
v.
L. RAY, Medical Administrator; B. ULEP, Doctor; CYNDY
THIGPEN, Charge Nurse; JEANNE HUTCHINGS, Charge Nurse; MS.
TAYLOR, Medical Administrator; MR. GORE, Doctor; R.
LOCKHART, Charge Nurse; E.P. WITT, Grievance Coordinator,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:14-cv-00122-CMH-JFA)
Submitted: December 19, 2014 Decided: January 14, 2015
Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Brandon Jerod Smith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brandon Jerod Smith appeals the district court’s order
dismissing his 42 U.S.C. § 1983 (2012) complaint. We vacate the
district court’s determination that Smith had three qualifying
strikes under the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(g) (2012), and remand for further proceedings.
In concluding that Smith had three strikes under the
PLRA at the time he filed the subject complaint, the district
court relied on three of Smith’s previously filed § 1983
actions: Smith v. Chilcote, No. 1:13-cv-01173-CMH-TRJ (E.D. Va.
Feb. 12, 2014); Smith v. Bendrick, No. 1:12-cv-00759-CMH-JFA
(E.D. Va. Oct. 11, 2012); and Smith v. Reagan, No. 1:10-cv-
01354-CMH-IDD (E.D. Va. Jan. 24, 2011). We conclude, however,
that Chilcote, No. 1:13-cv-01173-CMH-TRJ, did not properly
qualify as a strike at the time Smith filed his complaint.
Smith filed the subject complaint on February 5, 2014,
one week before the district court dismissed his § 1983 action
in Chilcote. Smith appealed the dismissal in Chilcote; the
appeal was pending in this court at the time the district court
dismissed the underlying complaint for failure to prepay the
filing fees. Because Smith had not exhausted his right to
appeal in Chilcote, it did not qualify as a strike at the time
the district court dismissed this action. See Henslee v.
Keller, 681 F.3d 538, 543 (4th Cir. 2012).
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Even if Smith is found, on remand, to have amassed
three strikes, however, he may proceed without prepayment of
fees if he is under “imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g); see Ciarpaglini v. Saini, 352
F.3d 328, 330 (7th Cir. 2003); McAlphin v. Toney, 281 F.3d 709,
710 (8th Cir. 2002); Gibbs v. Cross, 160 F.3d 962, 965-66 (3d
Cir. 1998). Smith alleged that he is suffering from chest pain
and heart palpitations, and has been coughing up blood on a
daily basis since December 2013. He further asserted that
prison officials have refused to treat him for these issues
despite his complaints. These assertions support a conclusion
that Smith is under imminent danger of serious physical injury.
Accordingly, we vacate the order of dismissal and
remand for proceedings. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
material before this court and argument will not aid the
decisional process.
VACATED AND REMANDED
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