Kenneth Newkirk v. Ralph Northam

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 13, 2023
• Docket: 23-6228
• Status: Unpublished

Opinion

USCA4 Appeal: 23-6228 Doc: 15 Filed: 10/13/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-6228

KENNETH H. NEWKIRK,

Petitioner - Appellant,

v.

RALPH NORTHAM, Governor of VA,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge; Mark R. Colombell, Magistrate Judge. (3:23-cv-00058-HEH-MRC)

Submitted: September 18, 2023 Decided: October 13, 2023

Before RICHARDSON, RUSHING, and HEYTENS, Circuit Judges.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

Kenneth H. Newkirk, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-6228 Doc: 15 Filed: 10/13/2023 Pg: 2 of 3

PER CURIAM:

Kenneth H. Newkirk, a Virginia inmate, filed a “Request for Emergency Appeal

Bond on or/Appeal Bond not to Exceed 5000/and or Home Confinement.” After

examining the pleading, the magistrate judge could not discern whether Newkirk was

attempting to file a 42 U.S.C. § 1983 complaint of a 28 U.S.C. § 2254 petition.

Accordingly, the magistrate judge directed the Clerk to send Newkirk forms for both types

of actions and ordered Newkirk to complete the proper form within 30 days. The

magistrate judge warned that failure to submit a completed form by the deadline would

result in the dismissal of the action. Newkirk did not submit his action on the proper form

but filed a “Request for Delayed Appeal.” The district court denied that request and

dismissed Newkirk’s action without prejudice for failure to comply with the magistrate

judge’s order.

Newkirk first seeks to appeal the magistrate judge’s order directing him to file the

action on the proper form. This court may exercise jurisdiction only over final orders,

28 U.S.C. § 1291, and certain interlocutory and collateral orders, 28 U.S.C. § 1292; Fed.

R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949).

“[A] final decision generally is one which ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” Kinsale Ins. Co. v. JDBC Holdings,

Inc., 31 F.4th 870, 873 (4th Cir. 2022) (internal quotation marks omitted). The magistrate

judge’s order is not a final order. Accordingly, we dismiss Newkirk’s appeal of the

magistrate judge’s order for lack of jurisdiction.

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Newkirk also appeals the district court’s order dismissing his action. A district court

has the authority to dismiss an action for a party’s failure to comply with its orders, and we

review a court’s decision to dismiss for failure to comply for an abuse of discretion. See

Fed. R. Civ. P. 41(b); Attkisson v. Holder, 925 F.3d 606, 620, 625-27 (4th Cir. 2019). “A

district court abuses its discretion when it acts arbitrarily or irrationally, fails to consider

judicially recognized factors constraining its exercise of discretion, relies on erroneous

factual or legal premises, or commits an error of law.” United States v. Jenkins, 22 F.4th

162, 167 (4th Cir. 2021) (internal quotation marks omitted). We conclude that the district

court did not abuse its discretion in dismissing Newkirk’s action and affirm the court’s

judgment. Newkirk v. Northam, No. 3:23-cv-00058-HEH-MRC (E.D. Va. Mar. 28, 2023);

see Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court did

not abuse its discretion when it dismissed case for failure to comply with prior order after

explicitly warning that dismissal would result from failure to comply). We deny a

certificate of appealability as unnecessary. See Harbison v. Bell, 556 U.S. 180, 183 (2009);

United States v. McRae, 793 F.3d 392, 399-400 (4th Cir. 2015).

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.

DISMISSED PART, AFFIRMED IN PART