Jeffrey Cohen v. Rod Rosenstein

607 F. App'x 334

Opinion

Vacated and remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Jeffrey Brian Cohen appeals the district court’s order dismissing without prejudice, * under 28 U.S.C. §§ 1915, 1915A (2012), his suit against federal prosecutors brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

The district court determined that Cohen’s complaint raised issues concerning the validity of the Government’s ongoing criminal case against Cohen and, thus, should be dismissed under the principles of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and its progeny. Because no final judgment of conviction has yet been entered, we conclude that the district court’s dismissal under Heck is premature. See Wallace v. Kato, 549 U.S. 384, 393-94, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007).

Accordingly, we vacate the district court’s order and remand for further proceedings in light of Wallace. 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.

VACATED AND REMANDED.

* We have jurisdiction because Cohen cannot cure the defect identified in his complaint by mere amendment. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.1993).