Jeffrey Cohen v. Brendan Hurson , 623 F. App'x 620 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6722
JEFFREY COHEN,
Plaintiff - Appellant,
v.
BRENDAN A. HURSON, Federal Public Defender; DEBORAH L.
BOARDMAN, Federal Public Defender; JAMES WYDA, Federal
Public Defender,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Ellen L. Hollander, District Judge.
(1:15-cv-00986-ELH)
Submitted: November 25, 2015 Decided: December 3, 2015
Before NIEMEYER and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
Jeffrey Cohen, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Cohen appeals the district court’s order dismissing
his civil action pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii)
(2012) and 28 U.S.C. § 1915A(b)(1), (2) (2012), and designating
the dismissal as a strike for purposes of 28 U.S.C. § 1915(g)
(2012). For the reasons that follow, we affirm the district
court’s judgment as modified.
A federal court is required to dismiss an action brought in
forma pauperis at any time it determines the action “is
frivolous or malicious,” “fails to state a claim on which relief
may be granted,” or “seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)
(2012); see 28 U.S.C. § 1915A(b) (2012). We review the
dismissal of a complaint as frivolous for abuse of discretion.
Nagy v. FMC Butner, 376 F.3d 252, 254 (4th Cir. 2004). We
review questions of subject matter jurisdiction de novo. Home
Buyers Warranty Corp. v. Hanna, 750 F.3d 427, 432 (4th Cir.
2014).
Cohen first argues that the district court improperly
construed his action as asserting a civil rights claim pursuant
to 42 U.S.C. § 1983 (2012). While Cohen’s constitutional claim
alleging ineffective assistance by his federal public defenders
is more appropriately construed as seeking relief under Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
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U.S. 388, 397 (1971), we find no abuse of discretion in the
district court’s dismissal of this claim as frivolous. See
Christian v. Crawford, 907 F.2d 808, 810 (8th Cir. 1990) (per
curiam); Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir.
1982).
Construing Cohen’s appellate pleadings liberally, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), he next challenges
the court’s dismissal of his complaint, to the extent it raised
a state law legal malpractice claim, for lack of diversity
jurisdiction. District courts have original jurisdiction over
civil actions in which the amount in controversy exceeds $75,000
and the dispute is between citizens of different states. 28
U.S.C. § 1332(a) (2012). Because Cohen did not include in his
complaint any allegations relevant to his citizenship, he did
not meet his obligation to allege facts sufficient to establish
subject matter jurisdiction, and his state law claim was
properly dismissed. See Pinkley, Inc. v. City of Frederick,
Md., 191 F.3d 394, 399 (4th Cir. 1999). However, the record
also provides no basis from which to affirmatively conclude that
the parties lacked diversity of citizenship. See Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 247-48 (3d Cir. 2013) (holding
that, generally, prisoner presumptively retains his prior
citizenship for purposes of diversity jurisdiction). Because
Cohen’s state law claim was properly dismissed for failure to
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plead facts establishing subject matter jurisdiction, that
dismissal “must be one without prejudice, because a court that
lacks jurisdiction has no power to adjudicate and dispose of a
claim on the merits.” S. Walk at Broadlands Homeowner’s Ass’n,
Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir.
2013) (hereinafter “Broadlands”).
Cohen also contends that the district court erred in
dismissing his action as frivolous and assessing a PLRA strike
against him on that basis. An action is properly dismissed as
frivolous “where it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). While
the district court properly dismissed Cohen’s constitutional
claim as frivolous, the district court’s “alternative holdings
on the merits assertedly supporting its dismissal” of Cohen’s
state law claim “were beyond the power of the district court.”
Broadlands, 713 F.3d at 185 n.4; see also United States v.
Wilson, 699 F.3d 789, 793 (4th Cir. 2012) (“[N]o other matter
can be decided without subject matter jurisdiction.”).
Moreover, neither a dismissal without prejudice nor a dismissal
for lack of subject matter jurisdiction counts as a strike under
§ 1915(g). See Moore v. Maricopa Cty. Sheriff’s Office, 657
F.3d 890, 895 (9th Cir. 2011) (lack of subject matter
jurisdiction); McLean v. United States, 566 F.3d 391, 397 (4th
Cir. 2009) (dismissal without prejudice). Because only part of
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Cohen’s action was subject to dismissal on a ground enumerated
under § 1915(g), the dismissal does not count as a strike. See
Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir. 2011).
Accordingly, we affirm the district court’s judgment
dismissing Cohen’s action. However, we modify the judgment to
reflect that Cohen’s putative state law claim for legal
malpractice is dismissed without prejudice for lack of subject
matter jurisdiction, and that the dismissal order is not a
strike under § 1915(g). 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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