NC Supported Employment v. NC Dpt. of Health & Human Srv.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-cv-00135-FL Copies to all parties and the district court/agency. [998678231]. Mailed to: N.C. Supported Employment; Alan Pitts and Seneca Nicholson. [10-2426]

Appeal: 10-2426

Document: 23

Date Filed: 09/15/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-2426

NORTHERN CAROLINA SUPPORTED EMPLOYMENT; SENECA NICHOLSON;
ALAN PITTS,
Plaintiffs – Appellants,
v.
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES;
EDWARD DAVIS; STACY THOMPSON; DIANNE JONES; CYNTHIA ALTON;
VICTORIA KLAH; GORDON AGINGU; LINDA PACE; VIVIAN PERSON,
Defendants – Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.
Louise W. Flanagan,
Chief District Judge. (5:10-cv-00135-FL)

Submitted:

September 13, 2011

Decided:

September 15, 2011

Before AGEE, DAVIS, and DIAZ, Circuit Judges.

Dismissed in part, affirmed in part by unpublished per curiam
opinion.

Northern Carolina Supported Employment, Seneca Nicholson, Alan
Pitts, Appellants Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-2426

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Date Filed: 09/15/2011

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PER CURIAM:
Northern

Carolina

Supported

Employment,

Seneca

Nicholson, and Alan Pitts (“Plaintiffs”) filed a civil action
raising a number of claims under 42 U.S.C. §§ 1981, 1983 (2006),
the

Racketeer

Influenced

and

Corrupt

Organizations

Act,

18 U.S.C. §§ 1961-68 (2006), the Civil Rights Act of 1964, as
amended,

42 U.S.C.A.

§ 2000d

(West

2003

&

Supp.

2010),

the

Rehabilitation Act of 1973, 29 U.S.C. § 794 (2006), and state
law.

The magistrate judge determined that Plaintiffs’ claims

against Defendant North Carolina Department of Health and Human
Services

(“NCDHHS”)

Rehabilitation

and

(“Division”),

its
and

Division
NCDHHS

of

Vocational

employee

Defendants

Davis, Thompson, Jones, Alton, Klah, Agingu, Pace, and Person in
their official capacities were barred by the Eleventh Amendment
and recommended that they be dismissed.
also

determined

that

Plaintiffs

had

The magistrate judge

failed

to

state

claims

against Defendants Davis, Thompson, Jones, Alton, Klah, Agingu,
Pace, and Person in their individual capacities and recommended
that

these

claims

be

dismissed

under

28

U.S.C.

§ 1915(e)(2)(B)(ii) (2006) for failure to state a claim on which
relief may be granted.
The

district

determinations
prejudice.

but

court

adopted

magistrate

judge’s

Plaintiffs’

dismissed

the

complaint

without

Within the twenty-eight-day time limit for filing
2

Appeal: 10-2426

Document: 23

motions

to

Date Filed: 09/15/2011

alter

or

amend

under

Page: 3 of 4

Fed.

R.

Civ.

P.

59(e),

Plaintiffs filed a variety of pleadings that the district court
construed as a motion for reconsideration. *
motion.

Plaintiffs

now

seek

to

appeal

The court denied the
the

district

court’s

order denying their motion for reconsideration.
This court may exercise jurisdiction only over final
orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and
collateral

orders,

28 U.S.C.

§ 1292

(2006);

Fed.

R.

Civ.

P.

54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 54547 (1949).
complaint

“[A] plaintiff may not appeal the dismissal of his
without

prejudice

unless

the

grounds

for

dismissal

clearly indicate that no amendment [in the complaint] could cure
the defects in the plaintiff’s case.”

Domino Sugar Corp. v.

Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir.
1993)
whether

(internal
a

quotation

dismissal

marks

without

omitted).

prejudice

is

In

ascertaining

reviewable

in

this

court, we must determine whether Plaintiffs “could save [their]
action by merely amending [their] complaint.”
As

to

Plaintiffs’

claims

against

Defendants

Id. at 1066-67.
Davis,

Thompson,

Jones, Alton, Klah, Agingu, Pace, and Person in their individual

*

Because Plaintiffs filed their motion for reconsideration
within the twenty-eight-day time limit for motions under Fed. R.
Civ. P. 59(e), we treat the motion as such.
Dove v. CODESCO,
569 F.2d 807, 809 (4th Cir. 1978).

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Date Filed: 09/15/2011

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capacities, because the grounds for dismissal make clear that
Plaintiffs
complaint
denying

could
in

the

save

their

district

reconsideration

is

action

court,
not

by

the

filing

district

appealable.

an

amended

court’s

order

Accordingly,

we

dismiss the appeal in part for lack of jurisdiction.
As to Plaintiffs’ claims against NCDHHS, its Division,
and

Davis,

Thompson,

Jones,

Alton,

Klah,

Agingu,

Pace,

and

Person in their official capacities, although the order denying
reconsideration of the dismissal of these claims is appealable,
Plaintiffs do not address this issue in their informal appellate
brief.
Wahi

v.

We therefore deem this issue waived.
Charleston

(4th Cir. 2009).

Area

Med.

Ctr.,

Inc.,

4th Cir. R. 34(b);
562

F.3d

599,

607

Accordingly, we affirm in part the district

court’s order denying reconsideration.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.

DISMISSED IN PART,
AFFIRMED IN PART

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