UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-2426

NORTHERN CAROLINA SUPPORTED EMPLOYMENT; SENECA NICHOLSON; 

ALAN PITTS, 

Plaintiffs – Appellants, 

v. 

NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; 

EDWARD DAVIS; STACY THOMPSON; DIANNE JONES; CYNTHIA ALTON; 

VICTORIA KLAH; GORDON AGINGU; LINDA PACE; VIVIAN PERSON, 

Defendants – Appellees. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan, 

Chief District Judge. (5:10-cv-00135-FL) 

Submitted: September 13, 2011 Decided: September 15, 2011

Before AGEE, DAVIS, and DIAZ, Circuit Judges. 

Dismissed in part, affirmed in part by unpublished per curiam 

opinion. 

Northern Carolina Supported Employment, Seneca Nicholson, Alan 

Pitts, Appellants Pro Se. 

Unpublished opinions are not binding precedent in this circuit. 
2

PER CURIAM: 

Northern Carolina Supported Employment, Seneca 

Nicholson, and Alan Pitts (“Plaintiffs”) filed a civil action 

raising a number of claims under 42 U.S.C. §§ 1981, 1983 (2006), 

the Racketeer Influenced and Corrupt Organizations Act, 

18 U.S.C. §§ 1961-68 (2006), the Civil Rights Act of 1964, as 

amended, 42 U.S.C.A. § 2000d (West 2003 & Supp. 2010), the 

Rehabilitation Act of 1973, 29 U.S.C. § 794 (2006), and state 

law. The magistrate judge determined that Plaintiffs’ claims 

against Defendant North Carolina Department of Health and Human 

Services (“NCDHHS”) and its Division of Vocational 

Rehabilitation (“Division”), and NCDHHS employee Defendants 

Davis, Thompson, Jones, Alton, Klah, Agingu, Pace, and Person in 

their official capacities were barred by the Eleventh Amendment

and recommended that they be dismissed. The magistrate judge 

also determined that Plaintiffs had failed to state claims 

against Defendants Davis, Thompson, Jones, Alton, Klah, Agingu, 

Pace, and Person in their individual capacities and recommended 

that these claims be dismissed under 28 U.S.C. 

§ 1915(e)(2)(B)(ii) (2006) for failure to state a claim on which 

relief may be granted. 

The district court adopted the magistrate judge’s 

determinations but dismissed Plaintiffs’ complaint without 

prejudice. Within the twenty-eight-day time limit for filing 
3

motions to alter or amend under Fed. R. Civ. P. 59(e), 

Plaintiffs filed a variety of pleadings that the district court 

construed as a motion for reconsideration.*

This court may exercise jurisdiction only over final 

orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and 

collateral orders, 28 U.S.C. § 1292 (2006); Fed. R. Civ. P. 

54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-

47 (1949). “[A] plaintiff may not appeal the dismissal of his 

complaint without prejudice unless the grounds for dismissal 

clearly indicate that no amendment [in the complaint] could cure 

the defects in the plaintiff’s case.” Domino Sugar Corp. v. 

Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir.

1993) (internal quotation marks omitted). In ascertaining 

whether a dismissal without prejudice is reviewable in this 

court, we must determine whether Plaintiffs “could save [their]

action by merely amending [their] complaint.” Id. at 1066-67. 

As to Plaintiffs’ claims against Defendants Davis, Thompson, 

Jones, Alton, Klah, Agingu, Pace, and Person in their individual 

The court denied the 

motion. Plaintiffs now seek to appeal the district court’s 

order denying their motion for reconsideration. 

 * Because Plaintiffs filed their motion for reconsideration 

within the twenty-eight-day time limit for motions under Fed. R. 

Civ. P. 59(e), we treat the motion as such. Dove v. CODESCO, 

569 F.2d 807, 809 (4th Cir. 1978). 
4

capacities, because the grounds for dismissal make clear that 

Plaintiffs could save their action by filing an amended 

complaint in the district court, the district court’s order 

denying reconsideration is not appealable. Accordingly, we 

dismiss the appeal in part for lack of jurisdiction. 

As to Plaintiffs’ claims against NCDHHS, its Division, 

and Davis, Thompson, Jones, Alton, Klah, Agingu, Pace, and 

Person in their official capacities, although the order denying 

reconsideration of the dismissal of these claims is appealable, 

Plaintiffs do not address this issue in their informal appellate

brief. We therefore deem this issue waived. 4th Cir. R. 34(b); 

Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 

(4th Cir. 2009). Accordingly, we affirm in part the district 

court’s order denying reconsideration. We dispense with oral 

argument because the facts and legal contentions are adequately 

presented in the materials before the court and argument would 

not aid the decisional process. 

DISMISSED IN PART,

AFFIRMED IN PART