Joshua Bolen v. U.S. District Court
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:17-cv-01088-LCB-JEP. Copies to all parties and the district court/agency. [1000358424]. Mailed to: Joshua Bolen. [18-6302]
Appeal: 18-6302
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6302
JOSHUA BOLEN,
Petitioner - Appellant,
v.
UNITED STATES DISTRICT COURT,
Respondent - Appellee.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:17-cv-01088-LCB-JEP)
Submitted: July 6, 2018
Before KING, KEENAN, and HARRIS, Circuit Judges.
Dismissed and remanded by unpublished per curiam opinion.
Joshua Bolen, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
Decided: August 30, 2018
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PER CURIAM:
Joshua Bolen seeks to appeal the district court’s order adopting the magistrate
judge’s recommendation and dismissing without prejudice Bolen’s 28 U.S.C. § 2254
(2012) petition.
We dismiss the appeal as interlocutory and remand for further
proceedings.
This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291
(2012), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012); Fed. R.
Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949).
Because the order from which Bolen seeks to appeal does “not clearly preclude
amendment,” Bolen may be able to remedy the deficiencies identified by the district court
by filing an amended petition. Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619,
630 (4th Cir. 2015). Accordingly, the district court’s dismissal order is neither a final
order nor an appealable interlocutory or collateral order. See id. at 623-24; Domino
Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993).
We therefore dismiss this appeal for lack of jurisdiction. See Goode, 807 F.3d at
630. In Goode, we remanded to the district court with instructions to allow amendment
of the complaint. Id. Here, however, the district court has already afforded Bolen the
opportunity to amend. Accordingly, we direct on remand that the district court, in its
discretion, either afford Bolen another opportunity to file an amended petition or dismiss
the petition with prejudice, thereby rendering the dismissal order a final, appealable
order. We dispense with oral argument because the facts and legal contentions are
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adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED AND REMANDED
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