UNPUBLISHED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Affirmed in part; vacated in part by unpublished per curiam 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Unpublished opinions are not binding precedent in this circuit.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