Jeffrey B. Cohen v. Harry Mason Gruber, in his capacity as Assistant United States Attorney

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6684
JEFFREY B. COHEN,
Plaintiff - Appellant,
v.
HARRY MASON GRUBER, in his capacity as Assistant United States Attorney,
Defendant - Appellee.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Ellen L. Hollander, District Judge. (1:18-cv-02476-ELH)
Submitted: July 20, 2021 Decided: August 5, 2021
Before KING, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey Brian Cohen, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jeffrey Brian Cohen appeals the district court’s order dismissing his civil action
pursuant to Fed. R. Crim. P. 12(b)(6). On appeal, Cohen asserts only that the district court
abused its discretion in denying him leave to amend his complaint to allege 11 violations
of the Racketeer Influenced and Corrupt Organizations Act, (RICO Act), see 18 U.S.C.
§ 1964(c). Finding no reversible error, we affirm.
A party may amend a pleading once as a matter of course within 21 days of service
of the pleading or of a responsive pleading or certain Rule 12 motions. Fed. R. Civ. P.
15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “Although leave to amend
should be freely given when justice so requires, . . . [a] district court may deny a motion to
amend when the amendment would be prejudicial to the opposing party, the moving party
has acted in bad faith, or the amendment would be futile.” Equal Rights Ctr. v. Niles Bolton
Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (alteration, citations, and internal quotation
marks omitted). “We review for abuse of discretion a district court’s denial of leave to
amend for prejudice” but “review de novo a district court’s denial of leave to amend on the
basis of futility.” Davison v. Randall, 912 F.3d 666, 690 (4th Cir. 2019).
Here, the district court denied Cohen’s proposed amendment based on both
prejudice and futility. Assuming, without deciding, that the district court abused its
discretion in finding prejudice sufficient to deny leave to amend, we conclude that the
district court did not err in concluding that allowing Cohen to allege his proposed RICO
claims would be futile. “A proposed amendment is futile when it is clearly insufficient or

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frivolous on its face . . . [or] if the claim it presents would not survive a motion to dismiss.”
Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp., 914 F.3d 213, 228 (4th Cir. 2019)
(citation and internal quotation marks omitted). When assessing whether a proposed
amendment would be futile, courts apply the same standard applicable to a Rule 12(b)(6)
motion to dismiss for failure to state a claim. U.S. ex rel. Ahumada v. NISH, 756 F.3d 268,
274 (4th Cir. 2014). Rule 12(b)(6) “tests the legal sufficiency of the complaint.” In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017). In evaluating a Rule 12(b)(6) motion, the
court determines whether, “accepting all well-pleaded facts as true and drawing all
reasonable inferences in favor of the plaintiff,” the complaint “state[s] a claim to relief that
is plausible on its face.” Turner v. Thomas, 930 F.3d 640, 644 (4th Cir. 2019) (internal
quotation marks omitted). Even viewed through this deferential lens, Cohen’s allegations
fail to state a plausible RICO claim. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496
(1985) (describing elements of RICO violation); U.S. Airline Pilots Ass’n v. Awappa, LLC,
615 F.3d 312, 318 (4th Cir. 2010) (discussing continuity requirement); GE Inv. Private
Placement Partners II v. Parker, 247 F.3d 543, 549-50 (4th Cir. 2001) (same).
Accordingly, we affirm the district court’s judgment. We deny Cohen’s motion for
appointment of counsel. 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

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