                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No.  11-6978


GARY BUTERRA WILLIAMS,

                Plaintiff – Appellant,

          v.

CIRCUIT COURT FOR CITY OF SUFFOLK,

                Defendant - Appellee. 



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   Henry E. Hudson, District
Judge. ( 3:11-cv-00125-HEH)


Submitted:   February 22, 2012             Decided:   March 2, 2012


Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge


Vacated and remanded by unpublished per curiam opinion. 


Gary Buterra Williams, Appellant Pro Se. 


Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM:

              Gary    Buterra      Williams      appeals    the    district      court’s

order    dismissing          his   petition       for    removal     of    the     state

prosecution against him pursuant to 28 U.S.C. § 1443 (2006), for

failure to pay the filing fee.                As we conclude that the district

court erred in finding that Williams was a “three-striker,” we

vacate the district court’s order and remand. 

              Under    the    Prison    Litigation       Reform    Act    (“PLRA”),    a

prisoner who has had three or more actions or appeals dismissed

as frivolous, malicious, or for failure to state a claim upon

which relief may be granted, may not proceed without prepayment

of fees unless he is under “imminent danger of serious physical

injury.”       28 U.S.C. § 1915(g) (2006).                 However, dismissal of an

action without prejudice for failure to state a claim does not

count as a “strike” under the PLRA.                       McLean v. United States,

566 F.3d 391, 396-97 (4th Cir.  2009). 

              Here, the district court relied on three 42 U.S.C.

§ 1983 (2006) suits instituted by Williams in finding that he

was a “three-striker” — Williams v. Vliet, 3:05-cv-621 (E.D. Va.

June    8,    2006),    Williams        v.   Cavedo,       3:05-cv-842     (E.D.    Va.

Feb. 23, 2006), and Williams v. City of Richmond, 3:04-cv-747

(E.D.   Va.    Aug.    17,     2005).         City   of    Richmond,      however,    was

dismissed without prejudice for failure to state a claim for

relief and, therefore, cannot be relied upon in finding Williams

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a “three-striker.”      Moreover, while Williams has had many other

cases dismissed by the district court and other district courts,

our review of these cases has failed to yield another qualifying

dismissal. 

           We therefore conclude that the district court erred in

finding   that   Williams   had   sustained   three    strikes   under   the

PLRA.      Accordingly, we vacate the district court’s order and

remand for a determination of whether removal was proper under

§ 1443.     See, e.g., Northrup v. North Carolina, 2012 WL 19807

(4th Cir.  Jan. 5, 2012) (unpublished).            We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process. 

                                                      VACATED AND REMANDED




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