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  • Azazel Outlaw v. Gregg Hershberger, 4th Cir. (2015)

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    The United States Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of the appellant's 42 U.S.C. § 1983 action for failure to state a claim, but modified the dismissal to be without prejudice rather than with prejudice. The appellate court held that the appellant was not entitled to amend his complaint before dismissal. The court also clarified that dismissals under § 1915(e)(2)(B) should be without prejudice and not count as a strike.

    Original Description:

    Filed: 2015-11-10 Precedential Status: Non-Precedential Docket: 15-6899

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    The United States Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of the appellant's 42 U.S.C. § 1983 action for failure to state a claim, but modified the dismissal to be without prejudice rather than with prejudice. The appellate court held that the appellant was not entitled to amend his complaint before dismissal. The court also clarified that dismissals under § 1915(e)(2)(B) should be without prejudice and not count as a strike.

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    12 views3 pages

    Azazel Outlaw v. Gregg Hershberger, 4th Cir. (2015)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of the appellant's 42 U.S.C. § 1983 action for failure to state a claim, but modified the dismissal to be without prejudice rather than with prejudice. The appellate court held that the appellant was not entitled to amend his complaint before dismissal. The court also clarified that dismissals under § 1915(e)(2)(B) should be without prejudice and not count as a strike.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 15-6899

    AZAZEL AUSAR NZINGA OUTLAW, a/k/a Rodney Andrew McNeil,


    Plaintiff Appellant,
    v.
    GREGG L. HERSHBERGER, Secretary for the
    Public Safety and Correctional Services,

    Department

    of

    Defendant - Appellee.

    Appeal from the United States District Court for the District of
    Maryland, at Baltimore.
    Richard D. Bennett, District Judge.
    (1:15-cv-01257-RDB)

    Submitted:

    October 28, 2015

    Decided:

    November 10, 2015

    Before GREGORY, AGEE, and THACKER, Circuit Judges.

    Affirmed as modified by unpublished per curiam opinion.

    Azazel Ausar NZinga Outlaw, Appellant Pro Se.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Appellant

    appeals

    from

    the

    district

    courts

    order

    dismissing his 42 U.S.C. 1983 (2012) action for failure to


    state

    claim

    under

    28

    U.S.C.

    1915(e)(2)(B)

    (2012).

    The

    district courts order also stated that the dismissal should


    count

    as

    strike

    for

    purposes

    of

    1915(e).

    On

    appeal,

    Appellant contends that he should have been permitted to amend


    his complaint.

    We hold that Appellant was not entitled to amend

    his complaint before dismissal.


    The district court did not specify whether the complaint
    was

    dismissed

    with

    or

    without

    prejudice.

    Because

    the

    court

    stated that the dismissal would count as a strike, we conclude


    that the dismissal was with prejudice.

    See United States v.

    McClean, 566 F.3d 391, 396-97 (4th Cir. 2009) (dismissal without
    prejudice for failure to state a claim does not count as a
    strike).

    We note that dismissals under

    1915(e)(2)(B) should

    be without prejudice, see Nagy v. FMC Butner, 376 F.3d 252, 258
    (4th

    Cir.

    2004),

    and

    we

    modify

    the

    district

    courts

    order

    accordingly.
    Therefore,

    we

    affirm

    the

    district

    courts

    dismissal,

    modifying it to show that the dismissal is without prejudice and


    does not count as a 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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