Nathan Cole v. Gregory Holloway ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7224
NATHAN K. COLE,
Plaintiff – Appellant,
v.
GREGORY L. HOLLOWAY, Regional Admin.; C. W. CARPINO,
Housing Unit Mgr.; B. D. SCHUYLER, Institutional
Investigator; L. WYCHE, Sergeant; J. A. GUILL,
Captain/Officer In Charge; TRACY RAY, Warden; L. A. WATSON,
Hearing Officer,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:15-cv-00413-LO-JFA)
Submitted: January 21, 2016 Decided: February 1, 2016
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Nathan K. Cole, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathan K. Cole appeals from the district court’s orders
dismissing a portion of his 42 U.S.C. § 1983 (2012) complaint
with prejudice for failure to state a claim under 28 U.S.C.
§ 1915A(b)(1) (2012), and dismissing the remainder of the
complaint without prejudice for failure to particularize his
claims. We affirm in part and dismiss in part.
We review de novo a district court’s dismissal for failure
to state a claim pursuant to § 1915A. Slade v. Hampton Rds.
Reg’l Jail, 407 F.3d 243, 248 (4th Cir. 2005) (citation
omitted). Pursuant to § 1915A, a district court shall dismiss a
case at any time if it determines that the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted. 28 U.S.C. § 1915A(b)(1). Allegations in a complaint
are to be liberally construed, and a court should not dismiss an
action for failure to state a claim “‘unless after accepting all
well-pleaded allegations in the plaintiff’s complaint as true
and drawing all reasonable factual inferences from those facts
in the plaintiff’s favor, it appears certain that the plaintiff
cannot prove any set of facts in support of his claim entitling
him to relief.’” De’Lonta v. Angelone, 330 F.3d 630, 633 (4th
Cir. 2003) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.
2002)). Courts are instructed that pro se filings “however
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unskillfully pleaded, must be liberally construed.” Noble v.
Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994).
Dismissing Cole’s claim that he was improperly charged with
a disciplinary conviction and false promises were made regarding
its disposition, the district court correctly noted the general
legal proposition that a false disciplinary charge cannot serve
as the basis for a constitutional claim. See Freeman v.
Rideout, 808 F.2d 949, 951 (2d Cir. 1986). Accordingly, we
agree with the district court that Cole failed to state a claim
in this regard. However, we note that there are exceptions to
this rule. See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.
1989) (holding that a disciplinary charge may be actionable
under § 1983 if retaliatory); Suprenant v. Rivas, 424 F.3d 5,
13-14 (1st Cir. 2005) (holding (in case of pre-trial detainee)
that unprincipled manipulation of legitimate prison regulations,
to the detriment of a prisoner, can constitute
unconstitutionally arbitrary punishment). Cole did not allege a
motivation behind the Defendants’ alleged actions. However, if
Cole could prove a set of facts showing unconstitutional
retaliation or arbitrary punishment, the allegedly false
disciplinary charges might support a claim for relief.
Accordingly, we modify the dismissal of these claims to show it
is without prejudice, and we affirm as modified.
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Turning to the remainder of the dismissal, an order
dismissing a complaint without prejudice is not an appealable
final order if “the plaintiff could save his action by merely
amending his complaint.” Domino Sugar Corp. v. Sugar Workers
Local Union 392, 10 F.3d 1064, 1066–67 (4th Cir. 1993). In
Domino Sugar, we held that if “the grounds of the dismissal make
clear that no amendment could cure the defects in the
plaintiff's case, the order dismissing the complaint is final in
fact” and therefore appealable. Id. at 1066 (quoting Coniston
Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 463 (7th Cir.
1988)). Where a district court grants a motion to dismiss for
failure to plead sufficient facts in the complaint, we lack
appellate jurisdiction because the plaintiff could amend the
complaint to cure the pleading deficiency. Goode v. Central VA
Legal Aid Society, 807 F.3d 619, 624 (4th Cir. 2015).
Here, the district court dismissed the remainder of the
complaint without prejudice. While the district court dismissed
the complaint for failure to comply with a court order, the
court had previously found that Cole’s claims had the potential
to state a claim, although his complaint currently failed to do
so. Because Cole could refile an amended complaint curing the
deficiencies noted by the district court, the portion of the
court’s judgment dismissing Cole’s remaining claims is
unappealable.
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Accordingly, we grant leave to proceed in formal pauperis
and affirm the district court’s dismissal of Cole’s “false”
disciplinary charge claim but modify the order to show that the
dismissal is without prejudice. As to the remainder of the
district court’s judgment, we dismiss for lack of jurisdiction.
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 IN PART;
DISMISSED IN PART
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