Christopher Odom v. Nikki Haley , 627 F. App'x 250 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7101
CHRISTOPHER ODOM,
Plaintiff – Appellant,
v.
GOVERNOR NIKKI HALEY; MAYOR JOE RILEY, City of Charleston;
MAYOR KEITH SUMNEY, North Charleston; JUDGE GARFINKEL;
JUDGE KRISTI HARRINGTON; JUDGE JEFFERSON; STATE ATTORNEY
ALAN WILSON; PD ASHLEY PENNINGTON; PROSECUTOR SCARLET
WILSON; MICHAEL GRANT; DOLLAR TREE; MUSC; DR. STEPHANIE
MONTGOMERY; CARTA BUS CO.; CARTA BUS WHEELCHAIR LIFT
MANUFACTURER; CARTA BUS INSURER; CARTA BUS DRIVER JOHN;
OFFICER CHERRY, of Charleston Police Department; OFFICER
HO, of Charleston Police Department; UNKNOWN POLICE
OFFICER, with Officer Ho on December 16, 2014; OFFICER
TUGYA, of Charleston Police Department on October 29, 2012;
CHARLESTON POLICE DEPARTMENT; CITY OF NORTH CHARLESTON
POLICE DEPARTMENT; CITY OF CHARLESTON TAXPAYERS; SOUTH
CAROLINA STATE TAXPAYERS; COUNTY OF CHARLESTON TAXPAYERS;
CITY OF NORTH CHARLESTON TAXPAYERS; CHAMPUS, Insurer;
SHERIFF AL CANNON; FNU LNU, Female Victim Advocate; FNU
LNU, Doctors from MUSC who approved placement of Plaintiff
in SCDMH; OFFICER RICHARDSON,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Richard M. Gergel, District
Judge. (5:15-cv-01951-RMG)
Submitted: November 23, 2015 Decided: December 30, 2015
Before AGEE and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed as modified by unpublished per curiam opinion.
Christopher A. Odom. Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Christopher A. Odom appeals from the district court’s order
adopting in part the report and recommendation of the magistrate
judge and dismissing Odom’s complaint for failure to state a
claim under 28 U.S.C. §§ 1915(e)(2)(B), 1915A (2012). The court
dismissed certain counts of the complaint with prejudice and
other counts without prejudice. The district court’s order also
stated that the dismissal should count as a strike for purposes
of 28 U.S.C. § 1915(g) (2012).
Odom did not allege, in either his objections to the
magistrate judge’s report or his informal brief on appeal, any
specific errors in the district court’s reasoning that Odom’s
complaint failed to state a claim. Accordingly, he has waived
consideration of the district court’s dismissal. See 4th Cir.
R. 34(b) (failure to raise claim in informal brief); Wright v.
Collins, 766 F.2d 841, 846-87 (4th Cir. 1985) (failure to file
objections to the magistrate judge’s report). Regarding the
district court’s ruling that its dismissal was Odom’s third
strike under § 1915(g), we note that part of Odom’s complaint
was dismissed without prejudice. We have held that a dismissal
without prejudice for failure to state a claim does not count as
a strike under § 1915(g). McLean v. United States, 566 F.3d
391, 396-97 (4th Cir. 2009); see also Tolbert v. Stevenson, 635
F.3d 646, 650-51 (4th Cir. 2011) (holding that, in order to
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count as a strike, entire action must be dismissed as frivolous,
malicious, or for failure to state a claim).
Thus, we hold that the district court’s dismissal was not a
strike, and we modify the district court’s order accordingly.
We grant leave to proceed in forma pauperis and affirm the
district court’s dismissal as modified. 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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