UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-7883

LONNIE EARL EVERETT,

Plaintiff - Appellant,

v.

MAJOR WHALEY; CONRAD KIRBY; SHELIA KING; NURSE BEVERLY,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:12-ct-03066-BO)

Submitted: December 28, 2012 Decided: January 14, 2013

Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Lonnie Earl Everett, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Lonnie Earl Everett appeals the district court’s order 

dismissing his 42 U.S.C. § 1983 (2006) complaint. Because the 

district court incorrectly determined that Everett has three 

qualifying strikes under the Prison Litigation Reform Act 

(“PLRA”), 28 U.S.C. § 1915(g) (2006), we vacate the order of 

dismissal and remand.

In concluding that Everett has three strikes under the 

PLRA at the time he filed the subject complaint, the district 

court relied on Everett’s two previous § 1983 actions, Everett 

v. Sydnoski, No. 5:06-ct-03037-FL (E.D.N.C. Sept. 28, 2006); and 

Everett v. Wilkerson, No. 5:04-ct-00569-H (E.D.N.C. Oct. 19, 

2004), and an appeal to this Court, Everett v. Wilkerson, 127 F. 

App’x 670 (4th Cir. 2005) (No. 04-7933). We conclude that the 

district court erred in finding that Sydnoski, No. 5:06-ct03037-FL, and Wilkerson, 127 F. App’x 670, properly qualify as 

strikes.*

In Sydnoski, No. 5:06-ct-03037-FL, Everett raised 

Eighth Amendment claims against numerous prison personnel. 

After conducting a frivolity review, the district court 

 * Additionally, a search of our docket and the dockets for 

the Western, Middle, and Eastern districts of North Carolina 

does not reveal any additional actions or appeals that properly 

qualify as strikes against Everett. 
3

dismissed Everett’s claims against the named defendants based on 

res judicata and directed that Everett particularize his 

allegation of improper medical care and his claims against the 

remaining unnamed defendant. When Everett failed to respond, 

the district court dismissed his remaining claims. 

Accordingly, because the district court’s dismissal 

did not turn on an explicit determination that Everett’s entire 

action failed to state a claim or was otherwise frivolous or 

malicious, it does not qualify as a strike. Tolbert v. 

Stevenson, 635 F.3d 646, 651 (4th Cir. 2011); see Butler v. DOJ, 

492 F.3d 440, 443-45 (D.C. Cir. 2007) (holding that, although 

operating as a decision on the merits, a dismissal for failure 

to prosecute does not necessarily qualify as a strike because it 

is not a decision based on the merits, maliciousness, or 

frivolity of an action). 

Similarly, in Wilkerson, 127 F. App’x 670, we simply 

affirmed the dismissal of Everett’s complaint as time-barred. 

Because we made no independent determination that Everett’s 

appeal was malicious or frivolous, the district court erred in 

counting this court’s disposition as a separate strike. See

Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 

780 (10th Cir. 1999) (affirmance on appeal of dismissal that 

qualifies as a strike counts only as one strike); see also

Thompson v. DEA, 492 F.3d 428, 433 (D.C. Cir. 2007) (same).
4

Because we need not reach the issue, we decline to 

consider whether the dismissal of Everett’s complaint in

Wilkerson, No. 5:04-ct-00569-H, properly qualifies as a strike. 

Instead, the district court may reexamine whether the dismissal 

so qualifies should it be necessary to again consider Everett’s 

PLRA status in a subsequent proceeding. 

Accordingly, we vacate the order of dismissal and 

remand for proceedings consistent with this opinion. We deny 

Everett’s motion to appoint counsel. 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.

VACATED AND REMANDED