                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-7385


THOMAS STOUT, JR.,

                Plaintiff - Appellant,

          v.

S. A. CRAWFORD, Garner Police Department,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
Chief District Judge. (5:15-ct-03091-D)


Submitted:   January 27, 2016                Decided:   February 9, 2016


Before AGEE and      FLOYD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Thomas Stout, Jr., Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Thomas       Stout,    Jr.,   appeals      the       district        court’s      order

dismissing      without      prejudice ∗   his        42   U.S.C.      §    1983     (2012)

complaint under 28 U.S.C. § 1915A(b)(1) (2012).                        Stout filed his

complaint       alleging     claims    against        Officer       Crawford       in     his

individual       and     official     capacities.             The      district         court

determined that Stout’s complaint raised issues concerning the

validity of the State’s ongoing criminal case against Stout and,

thus,     should    be   dismissed     under      the      principles        of    Heck    v.

Humphrey, 512 U.S. 477 (1994), and its progeny.

      Because it does not appear that Stout has been convicted of

the     state    charges,     we    conclude      that      the     district       court’s

dismissal under Heck of Stout’s claims against Crawford in his

individual capacity is premature.                See Wallace v. Kato, 549 U.S.

384, 393-94        (2007).     However,        with    regard     to   Stout’s       claims

against Crawford in his official capacity, we conclude                                   that

Crawford is not amenable to suit under § 1983.                             Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[N]either a

State nor its official acting in their official capacities are

‘persons’ under § 1983.”); see Ellis v. La.-Pac. Corp., 699 F.3d

778, 786 (4th Cir. 2012) (“This court is entitled to affirm the

      ∗We have jurisdiction because Stout cannot cure the defect
identified in his complaint by mere amendment.      See Goode v.
Cent. Va. Legal Aid Soc’y, 807 F.3d 619, 623-24 (4th Cir. 2015).



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[district]   court’s       judgment     on       alternate     grounds,     if     such

grounds are apparent from the record.” (citation and internal

quotation marks omitted)).

     Accordingly,      although        we       affirm   the   district       court’s

dismissal of Stout’s claims against Crawford in his official

capacity,    we   vacate     the   district         court’s       order    dismissing

Stout’s claims against Crawford in his individual capacity and

remand for further proceedings in light of Wallace.                       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 IN PART,
                                                                   VACATED IN PART,
                                                                       AND REMANDED




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