HERRIOTT v. STIRLING (2020)

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.

AFFIRMED AS MODIFIED

FOOTNOTES

FOOTNOTE.   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.

PER CURIAM:

Affirmed as modified by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.