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 2010-12

Oglesbee v. O'Brien , 406 F. App'x 681 ( 2010 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7155
LONNIE OGLESBEE,
Plaintiff - Appellant,
v.
TERRY O’BRIEN, Warden; CAPTAIN WILSON; CAPTAINS JOHNSON;
S.I.A. PITT; A.M. SHIFT PRISON GUARDS; WEBB, Special Housing
Unit Guard; KEGLEY, Special Housing Unit Guard; C/O
HAMILTON, Special Housing Unit Guard; ANDERS, Special
Housing Unit Guard; MOORE, Special Housing Unit Guard; MR.
FORTNER, Special Housing Unit Guard; STANLEY, Special
Housing Unit Guard; JARRELL, Special Housing Unit Guard;
OTHER UNAMED GUARDS, Special Housing Unit; SHREIBER, Special
Housing Lieutenant,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     Jackson L. Kiser, Senior
District Judge. (7:10-cv-00322-jlk-mfu)
Submitted:   November 4, 2010             Decided:   December 27, 2010
Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Lonnie Oglesbee, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lonnie     Oglesbee        appeals       the   district       court’s    order
dismissing without prejudice his civil action filed pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
    403 U.S. 388
        (1971),       for       failure    to    exhaust       administrative
remedies. ∗         Because the record contains allegations that prison
staff denied Oglesbee grievance forms and retaliated against him
for using the administrative grievance process, we conclude that
the    failure         to    exhaust       is    not    clear     from    the    face     of   the
complaint.             See Anderson v. XYZ Corr. Health Servs.,
    407 F.3d 674
    , 682-83 (4th Cir. 2005); see also Moore v. Bennette,
    517 F.3d 717
    ,    725      (4th    Cir.     2008).        Accordingly,         we   vacate    the
judgment          of     the       district       court     and     remand        for    further
proceedings consistent with this opinion.                                We deny Oglesbee’s
motion       to    appoint         counsel       and    dispense     with       oral    argument
because       the        facts       and        legal   contentions         are        adequately
∗
Generally, dismissals without prejudice are interlocutory
and not appealable.   Domino Sugar Corp. v. Sugar Workers Local
Union 392,
    10 F.3d 1064
    , 1066 (4th Cir. 1993).        However, a
dismissal without prejudice could be final if no amendment to
the complaint could cure the defect in the plaintiff’s case.
    Id. at 1066-67
    .   We conclude that the defect in this case (the
failure to exhaust administrative remedies) can only be cured by
something more than an amendment to the complaint and that the
order is appealable.
2
presented in the materials before the court and argument would
not aid the decisional process.
VACATED AND REMANDED
3