Azazel Outlaw v. Gregg Hershberger
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cv-01257-RDB. Copies to all parties and the district court/agency. [999696295]. Mailed to: Azazel Outlaw. [15-6899]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6899
AZAZEL AUSAR N’ZINGA OUTLAW, a/k/a Rodney Andrew McNeil,
Plaintiff – Appellant,
v.
GREGG L. HERSHBERGER, Secretary for the
Public Safety and Correctional Services,
Department
of
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:15-cv-01257-RDB)
Submitted:
October 28, 2015
Decided:
November 10, 2015
Before GREGORY, AGEE, and THACKER, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
Azazel Ausar N’Zinga Outlaw, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellant
appeals
from
the
district
court’s
order
dismissing his 42 U.S.C. § 1983 (2012) action for failure to
state
a
claim
under
28
U.S.C.
§
1915(e)(2)(B)
(2012).
The
district court’s order also stated that the dismissal should
count
as
a
strike
for
purposes
of
§
1915(e).
On
appeal,
Appellant contends that he should have been permitted to amend
his complaint.
We hold that Appellant was not entitled to amend
his complaint before dismissal.
The district court did not specify whether the complaint
was
dismissed
with
or
without
prejudice.
Because
the
court
stated that the dismissal would count as a strike, we conclude
that the dismissal was with prejudice.
See United States v.
McClean, 566 F.3d 391, 396-97 (4th Cir. 2009) (dismissal without
prejudice for failure to state a claim does not count as a
strike).
We note that dismissals under §
1915(e)(2)(B) should
be without prejudice, see Nagy v. FMC Butner, 376 F.3d 252, 258
(4th
Cir.
2004),
and
we
modify
the
district
court’s
order
accordingly.
Therefore,
we
affirm
the
district
court’s
dismissal,
modifying it to show that the dismissal is without prejudice and
does not count as a strike.
We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before this court and argument would not aid
the decisional process.
AFFIRMED AS MODIFIED
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