UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-6157

JEFFREY COHEN,

Plaintiff – Appellant,

and

DAMIEN RILEY; CHRISTOPHER PALMER; KENNETH BAINES; MARC 

BARBER; FAISAL MAPANGALA,

Plaintiffs,

v.

ROD ROSENSTEIN, US Attorney; HARRY GRUBER, Asst. US 

Attorney; JOYCE MCDONALD, Asst. US Attorney; LEAH BRESSACK, 

Asst. US Attorney; BRANDIS MARSH, Asst. US Attorney; MATTHEW 

HOFF, Asst. US Attorney; RACHEL YASSER, Asst. US Attorney,

Defendants - Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. William D. Quarles, Jr., District 

Judge. (1:14-cv-03996-WDQ)

Submitted: June 11, 2015 Decided: July 21, 2015

Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.
2

Jeffrey Brian Cohen, Appellant Pro Se. 

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Jeffrey Brian Cohen appeals the district court’s orders 

dismissing without prejudice,* under 28 U.S.C. §§ 1915 and 1915A 

(2012), his suit against federal prosecutors brought pursuant to 

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 

403 U.S. 388 (1971), and denying his motion pursuant to Rule 

59(e) of the Federal Rules of Civil Procedure. 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 without prejudice under the 

principles of Heck v. Humphrey, 512 U.S. 477 (1994), and its 

progeny. Because no conviction has yet occurred, we conclude 

that the district court’s dismissal under Heck is premature. 

See Wallace v. Kato, 549 U.S. 384, 393 (2007) (rejecting notion 

that “an action which would impugn an anticipated future 

conviction cannot be brought until that conviction occurs and is 

set aside”).

 * 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, 1067 (4th 

Cir. 1993) (“Thus we hold that 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.”) 

(brackets, citation, and internal quotation marks omitted).
4

Accordingly, we vacate the district court’s orders and 

remand for further proceedings in light of Wallace. See id. at 

393-94 (“If a plaintiff files a false-arrest claim before he has 

been convicted (or files any other claim related to rulings that 

will likely be made in a pending or anticipated criminal trial), 

it is within the power of the district court, and in accord with 

common practice, to stay the civil action until the criminal 

case or the likelihood of a criminal case is ended.”). In 

considering the application of Wallace, the district court is 

free to consider whether the case can be dismissed with 

prejudice on the merits. See Sup. Ct. of Va. v. Consumers Union 

of the U.S., Inc., 446 U.S. 719, 736 (1980) (noting that 

prosecutors are absolutely immune from monetary damages claims); 

Allen v. Burke, 690 F.2d 376, 378 (4th Cir. 1982) (same); see 

also Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th 

Cir. 2002) (noting that a dismissal for failure to state a claim 

under § 1915A(b) should be made with prejudice). 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.

VACATED AND REMANDED