Nathan Cole v. Gregory Holloway

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999670158-2] Originating case number: 1:15-cv-00413-LO-JFA Copies to all parties and the district court/agency. [999745369]. Mailed to: Cole. [15-7224]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7224

NATHAN K. COLE,
Plaintiff – Appellant,
v.
GREGORY L. HOLLOWAY, Regional Admin.; C. W. CARPINO,
Housing
Unit
Mgr.;
B.
D.
SCHUYLER,
Institutional
Investigator;
L.
WYCHE,
Sergeant;
J.
A.
GUILL,
Captain/Officer In Charge; TRACY RAY, Warden; L. A. WATSON,
Hearing Officer,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam O’Grady, District
Judge. (1:15-cv-00413-LO-JFA)

Submitted:

January 21, 2016

Decided:

February 1, 2016

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part, dismissed in part by unpublished per curiam
opinion.

Nathan K. Cole, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Nathan K. Cole appeals from the district court’s orders
dismissing a portion of his 42 U.S.C. § 1983 (2012) complaint
with prejudice for failure to state a claim under 28 U.S.C.
§ 1915A(b)(1)
complaint
claims.

(2012),

without

and

prejudice

dismissing
for

the

failure

remainder

to

of

the

particularize

his

We affirm in part and dismiss in part.

We review de novo a district court’s dismissal for failure
to state a claim pursuant to § 1915A.

Slade v. Hampton Rds.

Reg’l

Cir.

Jail,

omitted).

407

F.3d

243,

248

(4th

2005)

(citation

Pursuant to § 1915A, a district court shall dismiss a

case at any time if it determines that the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted.

28 U.S.C. § 1915A(b)(1).

Allegations in a complaint

are to be liberally construed, and a court should not dismiss an
action for failure to state a claim “‘unless after accepting all
well-pleaded allegations in the plaintiff’s complaint as true
and drawing all reasonable factual inferences from those facts
in the plaintiff’s favor, it appears certain that the plaintiff
cannot prove any set of facts in support of his claim entitling
him to

relief.’”

De’Lonta v. Angelone, 330 F.3d 630, 633 (4th

Cir. 2003) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.
2002)).

Courts

are

instructed

2

that

pro

se

filings

“however

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unskillfully pleaded, must be liberally construed.”

Noble v.

Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994).
Dismissing Cole’s claim that he was improperly charged with
a disciplinary conviction and false promises were made regarding
its disposition, the district court correctly noted the general
legal proposition that a false disciplinary charge cannot serve
as

the

basis

for

a

constitutional

claim.

See

Rideout, 808 F.2d 949, 951 (2d Cir. 1986).

Freeman

v.

Accordingly, we

agree with the district court that Cole failed to state a claim
in this regard.
this rule.
1989)

However, we note that there are exceptions to

See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.

(holding

that

a

disciplinary

charge

may

be

actionable

under § 1983 if retaliatory); Suprenant v. Rivas, 424 F.3d 5,
13-14 (1st Cir. 2005) (holding (in case of pre-trial detainee)
that unprincipled manipulation of legitimate prison regulations,
to

the

detriment

of

a

prisoner,

unconstitutionally arbitrary punishment).

can

Cole did not allege a

motivation behind the Defendants’ alleged actions.
Cole

could

retaliation
disciplinary

prove
or

a

set

of

arbitrary

charges

might

facts

showing

punishment,
support

constitute

the
a

However, if

unconstitutional
allegedly

claim

for

false
relief.

Accordingly, we modify the dismissal of these claims to show it
is without prejudice, and we affirm as modified.

3

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to

the

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remainder

of

the

dismissal,

an

order

dismissing a complaint without prejudice is not an appealable
final order if “the plaintiff could save his action by merely
amending his complaint.”
Local

Union

392,

10

Domino Sugar Corp. v. Sugar Workers

F.3d

1064,

1066–67

(4th

Cir.

1993).

In

Domino Sugar, we held that if “the grounds of the dismissal make
clear

that

no

amendment

could

cure

the

defects

in

the

plaintiff's case, the order dismissing the complaint is final in
fact” and therefore appealable. Id. at 1066 (quoting Coniston
Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 463 (7th Cir.
1988)).
failure

Where a district court grants a motion to dismiss for
to

appellate

plead

sufficient

jurisdiction

facts

because

the

in

the

complaint,

plaintiff

complaint to cure the pleading deficiency.

could

we

amend

lack
the

Goode v. Central VA

Legal Aid Society, 807 F.3d 619, 624 (4th Cir. 2015).
Here, the district court dismissed the remainder of the
complaint without prejudice.

While the district court dismissed

the complaint for failure to comply with a court order, the
court had previously found that Cole’s claims had the potential
to state a claim, although his complaint currently failed to do
so.

Because Cole could refile an amended complaint curing the

deficiencies noted by the district court, the portion of the
court’s

judgment

dismissing

Cole’s

unappealable.
4

remaining

claims

is

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Accordingly, we grant leave to proceed in formal pauperis
and

affirm

the

district

court’s

dismissal

of

Cole’s

“false”

disciplinary charge claim but modify the order to show that the
dismissal is without prejudice.

As to the remainder of the

district court’s judgment, we dismiss for lack of jurisdiction.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED IN PART;
DISMISSED IN PART

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