Opinion
No. 19-7102
07-29-2020
KEVIN HERRIOTT, Plaintiff - Appellant, v. BRIAN P. STIRLING, Director, in individual and official capacity; CHARLES WILLIAMS, Warden, in individual and official capacity; JOEL ANDERSON, Warden, in individual and official capacity; AARON JOYNER, Warden, in individual and official capacity; MICHAEL STEPHEN, Warden, in individual and official capacity; SCOTT LEWIS, Warden, in individual and official capacity; WILLIE DAVIS, Warden, in individual and official capacity; RICHARD COTHRAN, Warden, in individual and official capacity; LEVERN COHEN, Warden, in individual and official capacity; DONNIE E. STONEBREAKER, Warden, in individual and official capacity; TERRIE WALLACE, Warden, in individual and official capacity; GARY LANE, Warden, in individual and official capacity; JOHN PATE, Warden, in individual and official capacity; PATRICIA YELDELL, Warden, in individual and official capacity; CORPORAL GAINES, Officer, in individual and official capacity, Defendants - Appellees.
Kevin Herriott, Appellant Pro Se.
UNPUBLISHED
Appeal from the United States District Court for the District of South Carolina, at Greenville. David C. Norton, District Judge. (6:19-cv-00804-DCN) Before GREGORY, Chief Judge, THACKER and RUSHING, Circuit Judges. Affirmed as modified by unpublished per curiam opinion. Kevin Herriott, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Kevin Herriott appeals the district court's order accepting the recommendation of the magistrate judge and dismissing Herriott's 42 U.S.C. § 1983 (2018) complaint under 28 U.S.C. § 1915A(b) (2018). Although our review of the record reveals no reversible error, we conclude that the claims against Defendant Donnie Stonebreaker should have been dismissed without prejudice. Accordingly, we affirm as modified to reflect a dismissal without prejudice as to Stonebreaker. 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.
The magistrate judge indicated that, of the 15 named defendants, Herriott raised specific allegations against only 2—Stonebreaker and a correctional officer. As a result, the magistrate judge recommended dismissing the complaint with prejudice only as to these two defendants. It appears, however, that the magistrate judge confused Stonebreaker with a nonparty referenced in the complaint. Given that the allegations against Stonebreaker were, in fact, indistinguishable from the allegations against the other defendants whom the court dismissed without prejudice, we conclude that this was also the appropriate disposition for the claims against Stonebreaker. --------
AFFIRMED AS MODIFIED