Irving E. Twitty v. Nationwide Insurance Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2411
IRVING E. TWITTY,
Plaintiff - Appellant,
v.
NATIONWIDE INSURANCE COMPANY; PATRICIA DUGAN, CPCU AiC;
CHERYLON DEAN, Claims Invest; DENNIS GILLILAN, Claims
Manager; ALECIA CORNELIUS, Regulator; WANDA W. SMITH;
TIJUANA L. CRISP; OWNER OF JEEP GRAND CHEROKEE JEEP;
GEOFFREY W. GIBBON, Attorney at Law; GRENVILLE D. MORGAN,
JR., Attorney at Law; JOHN C. FEW, Circuit Court Judge,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. R. Bryan Harwell, District
Judge. (6:09-cv-02381-RBH)
Submitted: May 6, 2011 Decided: May 24, 2011
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Irving E. Twitty, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Irving E. Twitty appeals from the district court’s
order accepting the magistrate judge’s recommendation and
concluding that Twitty had three prior actions dismissed on the
ground that they were frivolous, malicious, or failed to state a
claim upon which relief may be granted under the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(b) (2006). If
an applicant has had three actions or appeals so dismissed, the
applicant may not proceed without prepayment of fees unless the
applicant is under “imminent danger of serious physical injury.”
28 U.S.C. § 1915(g) (2006).
The district court relied on the following three
actions as forming a basis for Twitty’s three such prior
dismissals: (1) Twitty v. Petty, No. 3:00-47-DWS (D.S.C. Feb.
24, 2000); (2) Twitty v. Stevens, No. 7:00-2615-DWS (D.S.C.
Sept. 20, 2000); and (3) Twitty v. Werner, et al. (D.S.C. Jan.
9, 2002).1
1 Independent research reveals this could be Case No. 7:01-
4131-19BG.2.
(R. 10 at 2). Each of these cases, however, was
dismissed without prejudice and therefore cannot qualify as a
predicate strike under the PLRA. See McLean v. United States,
566 F.3d 391, 395 (4th Cir. 2009) (noting the dismissal of an
action without prejudice for failure to state a claim may not
count as a “strike” under the PLRA).

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Accordingly, we vacate the district court’s order
finding that the above dismissals constituted strikes against
Twitty. We remand for further consideration of Twitty’s PLRA
application in accordance with this opinion and McLean.2 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
2 In her report and recommendation, the magistrate judge
noted that Twitty had filed 16 previous actions in that court.

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