Azazel Outlaw v. Gregg Hershberger , 805 F.3d 133 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6899
AZAZEL AUSAR N’ZINGA OUTLAW, a/k/a Rodney Andrew McNeil,
Plaintiff – Appellant,
v.
GREGG L. HERSHBERGER, Secretary for the Department of
Public Safety and Correctional Services,
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Affirmed as modified by unpublished per curiam opinion.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 N’Zinga Outlaw, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant appeals from the district court’s order
dismissing his 42 U.S.C. § 1983 (2012) action for failure to
state a claim under 28 U.S.C. § 1915(e)(2)(B) (2012). The
district court’s order also stated that the dismissal should
count as a 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 court’s order
accordingly.
Therefore, we affirm the district court’s 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
2
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED AS MODIFIED
3