Lonnie Oglesbee v. Terry O'Brien

Filing 920101228

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7155 LONNIE OGLESBEE, Plaintiff - Appellant, v. TERRY O'BRIEN, Warden; CAPTAIN WILSON; CAPTAINS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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 of (4th the Cir. 2008). court Accordingly, and remand we vacate the

judgment

district

for

further

proceedings consistent with this opinion. motion because to appoint facts counsel and and legal dispense

We deny Oglesbee's with oral are argument adequately

the

contentions

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