O.w., a minor, by his next friend and parent Santrayia Bass v. Marie L. Carr, police officer in her individual

FILED: January 3, 2024
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-1191
O.W., a minor, by his next friend and parent Santrayia Bass,
Plaintiff – Appellant,
v.
MARIE L. CARR, police officer in her individual and official capcities; REID
BAKER, assistant principal in his individual and official capacities; SCHOOL
BOARD OF THE CITY OF VIRGINIA BEACH, VIRGINIA, a body corporate;
CITY OF VIRGINIA BEACH, a body politic and corporate; AARON C. SPENCE,
Superintendent in his individual and official capacities; DAN EDWARDS, school
board members in their individual and official capacities; CAROLYN T. RYE,
school board members in their individual and official capacities; KIMBERLY A.
MELNYK, school board members in their individual and official capacities;
BEVERLY M. ANDERSON, school board members in their individual and official
capacities; SHARON R. FELTON, school board members in their individual and
official capacities; DOTTIE HOLTZ; LAURA K. HUGHES, school board
members in their individual and official capacities; VICTORIA MANNING, school
board members in their individual and official capacities; TRENACE B. RIGGS,
school board members in their individual and official capacities; JOEL
MCDONALD, school board members in their individual and official capacities;
PATTI T. JENKINS, Principal in her individual and officical capacities;
CAROLYN D. WEEMS, school board members in their individual and official
capacities,
Defendants – Appellees.
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JUVENILE LAW CENTER; RISE FOR YOUTH; ELECTRONIC PRIVACY
INFORMATION CENTER; NATIONAL POLICE ACCOUNTABILITY
PROJECT,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Elizabeth W. Hanes, District Judge. (2:21-cv-00448-EWH-LRL)
Submitted: January 3, 2024 Decided: January 3, 2024
Before GREGORY, THACKER, and RICHARDSON, Circuit Judges.
Dismissed without prejudice by unpublished order.
ON BRIEF: Makiba Gaines, POLARIS LAW FIRM, P.L.L.C., Virginia Beach, Virginia,
for Appellant. Mark D. Stiles, Christopher S. Boynton, Gerald L. Harris, Joseph M. Kurt,
OFFICE OF THE CITY ATTORNEY, Virginia Beach, Virginia, for Appellees City of
Virginia Beach and Marie Carr. Anne C. Lahren, Richard H. Matthews, Andrew C.
Harding, PENDER & COWARD, P.C., for Appellees School Board of the City of Virginia
Beach, Virginia; Reid Baker; Aaron C. Spence; Dan Edwards; Carolyn T. Rye; Kimberly
A. Melnyk; Beverly M. Anderson; Sharon R. Felton; Dorothy Holtz; Laura K. Hughes;
Victoria Manning; Trenace B. Riggs; Carolyn D. Weems; Joel McDonald; and Patti T.
Jenkins.
ORDER
PER CURIAM:
This case arises from O.W.’s lawsuit against various Virginia Beach, Virginia city
and public-school officials under 42 U.S.C. § 1983. In brief, O.W. asserts that the
defendants violated his federal constitutional rights, as well as various provisions of state

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law. On February 14, 2023, the district court granted the defendants’ motions for summary
judgment on all claims. Now O.W. seeks our review of that decision. But we must dismiss
O.W.’s appeal because we lack jurisdiction.
In the order from which O.W. appeals, the district court did not only grant the
defendants’ motions for summary judgment. It also ruled on several other of the parties’
pending motions. In relevant part, it denied O.W.’s motion for leave to file a Third
Amended Complaint. Yet it denied that motion “without prejudice.” J.A. 1231. And in
conjunction, it “order[ed] O.W.—if he desires to continue the prosecution of his case in
this forum—to seek leave to file a Third Amended Complaint within thirty (30) days from
today’s date.” Id. In the district court’s separate order that accompanied its memorandum
opinion, it restated that it denied the motion for leave to amend without prejudice, and
“DIRECTED” O.W. “to file a renewed motion for leave . . . within thirty (30) days” if he
so chose. J.A. 1234. It also “DIRECTED” parties “to contact the courtroom deputy within
seven days to schedule a status conference.” J.A. 1235. O.W. did not file a renewed
motion. Instead, he appealed three days after the district court’s order.
Apart from a few exceptions not applicable here, our jurisdiction is limited to
appeals from “final decisions of the district courts” in our circuit. 28 U.S.C. § 1291. In
Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (en banc), we held that an order dismissing a
complaint with leave to amend is not a final judgment appealable under 28 U.S.C. § 1291.
And the order remains nonfinal even if the plaintiff chooses not to amend her complaint.
Id. at 796. She may only “stand on her complaint” and get appellate review “by requesting
that the district court take further action to finalize its decision.” Id. at 797. The same is

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true if the district court “provided the plaintiff with a specified number of days during
which she could seek to amend.” Id. at 797–98. In that situation, the order dismissing the
complaint is only final if (1) the time period expires and the district court enters an order
finalizing its prior order, or (2) if the plaintiff moves the district court to enter such an order
prior to the expiration of the time period. Id. at 798.
The district court’s order O.W. appeals from isn’t final under Britt. The district
court’s “order” and “direction” to O.W. to file a renewed motion is nothing “less than an
express invitation” to amend. Britt, 45 F.4th at 795. And the district court “provided the
plaintiff with a specified number of days during which []he could seek to amend.” Id. at
797. Considering its invitation to file a renewed motion—not to mention its direction for
the parties schedule a status conference—the district court “[wa]s not finished with the
case.” Id. Rather than having “nothing . . . to do but execute the judgment,” id. at 792
(quoting Catlin v. United States, 324 U.S. 229, 233 (1945)), the district court “left the suit
pending for further proceeding,” Jung v. K.&D. Min. Co., 356 U.S. 335, 337 (1958).
So O.W. appealed too soon. Britt instructs that, to appeal, he had to have “the
district court itself [] confirm that its decision is final,” either by waiting for the district
court to issue a final order after the 30 days expired, or by moving for a finalized decision
prior to the expiration of the 30-day period. Britt, 45 F.4th at 797–98. Instead, however,

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O.W. appealed three days after the district court’s non-final order. As a result, we lack
jurisdiction under 28 U.S.C. § 1291. O.W.’s appeal is therefore
DISMISSED WITHOUT PREJUDICE.
FOR THE COURT
/s/Nwamaka Anowi
Clerk

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