Mark Lowe v. Virginia Dep't of Social Services

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6540
MARK MADISON LOWE,
Petitioner - Appellant,
v.
VIRGINIA DEPARTMENT OF SOCIAL SERVICES; PONNETTE SMITH,
Respondents - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:15-cv-00535-HEH)
Submitted: June 21, 2016 Decided: June 23, 2016
Before DUNCAN, KEENAN, and THACKER, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
Mark Madison Lowe, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Madison Lowe appeals the district court’s orders
dismissing his petition for a writ of mandamus as frivolous and
denying reconsideration. We have reviewed the record and find
no reversible error. Accordingly, we grant Lowe’s motions to
proceed in forma pauperis and amend his informal brief, and we
affirm for the reasons stated by the district court. Lowe v.
Va. Dep’t of Soc. Servs., No. 3:15-cv-00535-HEH (E.D. Va.
Mar. 16, 2016; Apr. 13, 2016). However, because the district
court dismissed Lowe’s petition for lack of jurisdiction, we
modify the dismissal order to reflect that the dismissal is
without prejudice and, thus, does not qualify as a strike under
28 U.S.C. § 1915(g) (2012). See Moore v. Maricopa Cty.
Sheriff’s Office, 657 F.3d 890, 893 (9th Cir. 2011) (holding
that dismissal for lack of subject matter jurisdiction does not
qualify as strike); McLean v. United States, 566 F.3d 391, 397
(4th Cir. 2009) (holding that dismissal without prejudice for
failure to state claim does not qualify as strike). We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED AS MODIFIED
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