Brian Farabee v. Sheriff of Dinwiddie County ( 2024 )

USCA4 Appeal: 23-7037 Doc: 15 Filed: 11/15/2024 Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-7037
BRIAN DAMON FARABEE,
Petitioner - Appellant,
v.
NELSON SMITH, Commissioner of the Virginia Department of Behavioral Health
and Development Services (DBHDS),
Respondent - Appellee,
and
SHERIFF OF DINWIDDIE COUNTY, (successor or designee); CHADWICK
DOTSON, Director of Virginia Department of Corrections; DEPARTMENT OF
VIRGINIA STATE POLICE; SUPERINTENDENT OF MEHERRIN RIVER
REGIONAL JAIL,
Respondents.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Arenda L. Wright Allen, District Judge. (2:22-cv-00279-AWA-LRL)
Submitted: October 28, 2024 Decided: November 15, 2024
Before GREGORY, WYNN, and HARRIS, Circuit Judges.
Dismissed and remanded by unpublished per curiam opinion.
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Brian Damon Farabee, Appellant Pro Se. Maurice Scott Fisher, Jr., HARMAN CLAYTOR
CORRIGAN & WELLMAN, Glen Allen, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Brian Damon Farabee seeks to appeal the district court’s order accepting the
magistrate judge’s recommendation and dismissing three of his claims in his 28 U.S.C.
§ 2241 petition but staying one of his claims pending the outcome of his claim in another
case. * This court may exercise jurisdiction only over final orders of the district court, 28
U.S.C. § 1291, and certain interlocutory and collateral orders, 28 U.S.C. § 1292; Fed. R.
Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949).
“Ordinarily, a district court order is not ‘final’ until it has resolved all claims as to
all parties.’” Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015). “‘[S]o long as the matter
remains open, unfinished or inconclusive, there may be no intrusion by appeal.’” Britt v.
DeJoy, 45 F.4th 790, 792 (4th Cir. 2022) (en banc) (published order).
The order that Farabee seeks to appeal is neither a final order nor an appealable
interlocutory or collateral order. See Campbell-McCormick, Inc. v. Oliver, 874 F.3d 390,
395-98 & n.4 (4th Cir. 2017). Accordingly, we deny a certificate of appealability as
unnecessary, dismiss the appeal for lack of jurisdiction, and remand to the district court for
consideration of the unresolved claim. We dispense with oral argument because the facts
*
While the district court’s order is labeled as a “Final Order,” the docket correctly
reflects that the case is stayed rather than closed. Specifically, the district court dismissed
Farabee’s first and second claims with prejudice, stayed his third claim pending a decision
in a different case, and dismissed his fourth claim without prejudice. Although the district
court dismissed the first claim as moot, it stated the dismissal was with prejudice; and while
we do not reach the merits of whether the dismissal was proper, we note that dismissals for
mootness, as with other jurisdictional defects, are without prejudice. See Adams Outdoor
Advert. Ltd. P’ship v. Beaufort Cnty., 106 F.4th 554, 564, 566 (4th Cir. 2024).
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and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED AND REMANDED
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