Joshua Bolen v. U.S. District Court

U.S. Court of Appeals for the Fourth Circuit August 30, 2018

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-6302

JOSHUA BOLEN,

Petitioner - Appellant,

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 Decided: August 30, 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Dismissed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 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

2 adequately presented in the materials before this court and argument would not aid the

decisional process.

DISMISSED AND REMANDED

Reference

Status: Unpublished