Jeffrey Cohen v. Brendan Hurson, 623 F. App'x 620

Plaintiff Jeffrey Cohen, proceeding pro se and in forma pauperis, sued alleging ineffective assistance by federal public defenders and a state-law legal malpractice claim.
The district court dismissed the action under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and designated the dismissal as a strike under 28 U.S.C. § 1915(g).
Cohen appealed, arguing the court mischaracterized his constitutional claim as a § 1983 action and improperly dismissed his state-law malpractice claim for lack of diversity jurisdiction.
The Fourth Circuit treated Cohen’s constitutional claim as a Bivens-type claim but affirmed its dismissal as frivolous.
The court held Cohen’s state-law malpractice claim was dismissed for failure to plead facts establishing diversity jurisdiction and therefore must be dismissed without prejudice.
The Fourth Circuit modified the judgment to hold the dismissal is not a strike under § 1915(g).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper characterization of constitutional claim (§ 1983 vs. Bivens)	Cohen argued his claim concerned ineffective assistance and should not be treated as § 1983	District court treated it as a civil‑rights style claim and dismissed	Court acknowledged Bivens is the proper vehicle but affirmed dismissal as frivolous
Dismissal as frivolous	Cohen contended dismissal was improper	Court found constitutional claim lacked an arguable basis in law or fact	Dismissal of the constitutional/Bivens claim affirmed as frivolous
Subject-matter jurisdiction over state-law malpractice claim (diversity)	Cohen asserted a malpractice claim but failed to allege citizenship; argued dismissal was improper	Court dismissed for lack of diversity because complaint did not plead parties’ citizenship	Dismissal for lack of subject-matter jurisdiction affirmed; because jurisdiction was not established, dismissal must be without prejudice
Assessment of a PLRA strike under § 1915(g)	Cohen argued dismissal should not count as a strike	District court designated the dismissal as a strike	Modified: only the frivolous constitutional claim was dismissible as a strikeable ground, but because the state claim was dismissed without prejudice for lack of jurisdiction the overall order is not a § 1915(g) strike

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognized implied damages remedy against federal officers for constitutional violations)
Neitzke v. Williams, 490 U.S. 319 (1989) (defines frivolousness standard for IFP dismissals)
S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175 (4th Cir. 2013) (a court lacking subject-matter jurisdiction must dismiss claims without prejudice)
Pinkley, Inc. v. City of Frederick, Md., 191 F.3d 394 (4th Cir. 1999) (plaintiff must plead facts establishing subject-matter jurisdiction)
Tolbert v. Stevenson, 635 F.3d 646 (4th Cir. 2011) (rules on when dismissals count as PLRA strikes)
McLean v. United States, 566 F.3d 391 (4th Cir. 2009) (dismissal without prejudice does not qualify as a § 1915(g) strike)