U.S. Court of Appeals for the Fourth Circuit, 2015

Christopher Odom v. Nikki Haley

Christopher Odom v. Nikki Haley
U.S. Court of Appeals for the Fourth Circuit · Decided December 30, 2015 · Agee, Floyd, Davis
627 F. App'x 250

Christopher Odom v. Nikki Haley

Opinion

Affirmed as modified by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Christopher A. Odom appeals from the district court’s order adopting in part the report and recommendation of the magistrate judge and dismissing Odom’s complaint for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B), 1915A (2012). The court dismissed certain counts of the complaint with prejudice and other counts without prejudice. The district court’s or *251 der also stated that the dismissal should count as a strike for purposes of 28 U.S.C. § 1915(g) (2012).

Odom did not allege, in either his objections to the magistrate judge’s report or his informal brief on appeal, any specific errors in the district court’s reasoning that Odom’s complaint failed to state a claim. Accordingly, he has waived consideration of the district court’s dismissal. See 4th Cir. R. 34(b) (failure to raise claim in informal brief); Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985) (failure to file objections to the magistrate judge’s report). Regarding the district court’s ruling that its dismissal was Odom’s third strike under § 1915(g), we note that part of Odom’s complaint was dismissed without prejudice. We have held that a dismissal without prejudice for failure to state a claim does not count as a strike under § 1915(g). McLean v. United States, 566 F.3d 391, 396-97 (4th Cir. 2009); see also Tolbert v. Stevenson, 635 F.3d 646, 650-51 (4th Cir. 2011) (holding that, in order to count as a strike, entire action must be dismissed as frivolous, malicious, or for failure to state a claim).

Thus, we hold that the district court’s dismissal was not a strike, and we modify the district court’s order accordingly. We grant leave to proceed in forma pauperis and affirm the district court’s dismissal as modified. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED.

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