                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-6722


JEFFREY COHEN,

                 Plaintiff - Appellant,

          v.

BRENDAN A. HURSON, Federal Public Defender; DEBORAH L.
BOARDMAN, Federal Public Defender; JAMES WYDA, Federal
Public Defender,

                 Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Ellen L. Hollander, District Judge.
(1:15-cv-00986-ELH)


Submitted:   November 25, 2015              Decided:   December 3, 2015


Before NIEMEYER    and   DIAZ,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed as modified by unpublished per curiam opinion.


Jeffrey Cohen, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

      Jeffrey Cohen appeals the district court’s order dismissing

his   civil    action        pursuant   to       28   U.S.C.   § 1915(e)(2)(B)(iii)

(2012) and 28 U.S.C. § 1915A(b)(1), (2) (2012), and designating

the dismissal as a strike for purposes of 28 U.S.C. § 1915(g)

(2012).       For the reasons that follow, we affirm the district

court’s judgment as modified.

      A federal court is required to dismiss an action brought in

forma      pauperis     at    any     time   it       determines     the   action    “is

frivolous or malicious,” “fails to state a claim on which relief

may be granted,” or “seeks monetary relief against a defendant

who   is    immune    from     such   relief.”         28   U.S.C.    § 1915(e)(2)(B)

(2012);      see   28    U.S.C.       § 1915A(b)       (2012).       We    review   the

dismissal of a complaint as frivolous for abuse of discretion.

Nagy v. FMC Butner, 376 F.3d 252, 254 (4th Cir. 2004).                               We

review questions of subject matter jurisdiction de novo.                            Home

Buyers Warranty Corp. v. Hanna, 750 F.3d 427, 432 (4th Cir.

2014).

      Cohen    first     argues       that   the       district    court    improperly

construed his action as asserting a civil rights claim pursuant

to 42 U.S.C. § 1983 (2012).              While Cohen’s constitutional claim

alleging ineffective assistance by his federal public defenders

is more appropriately construed as seeking relief under Bivens

v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

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U.S. 388, 397 (1971), we find no abuse of discretion in the

district    court’s     dismissal    of   this    claim       as    frivolous.        See

Christian v. Crawford, 907 F.2d 808, 810 (8th Cir. 1990) (per

curiam);    Cox   v.    Hellerstein,      685    F.2d   1098,        1099   (9th     Cir.

1982).

      Construing       Cohen’s   appellate        pleadings          liberally,       see

Erickson v. Pardus, 551 U.S. 89, 94 (2007), he next challenges

the court’s dismissal of his complaint, to the extent it raised

a   state   law   legal    malpractice        claim,    for    lack    of    diversity

jurisdiction.     District    courts      have   original          jurisdiction      over

civil actions in which the amount in controversy exceeds $75,000

and the dispute is between citizens of different states.                               28

U.S.C. § 1332(a) (2012).         Because Cohen did not include in his

complaint any allegations relevant to his citizenship, he did

not meet his obligation to allege facts sufficient to establish

subject     matter     jurisdiction,      and    his    state        law    claim     was

properly dismissed.          See Pinkley, Inc. v. City of Frederick,

Md., 191 F.3d 394, 399 (4th Cir. 1999).                       However, the record

also provides no basis from which to affirmatively conclude that

the parties lacked diversity of citizenship.                       See Mala v. Crown

Bay Marina, Inc., 704 F.3d 239, 247-48 (3d Cir. 2013) (holding

that,     generally,      prisoner    presumptively           retains       his     prior

citizenship for purposes of diversity jurisdiction).                              Because

Cohen’s state law claim was properly dismissed for failure to

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plead    facts     establishing          subject        matter    jurisdiction,        that

dismissal “must be one without prejudice, because a court that

lacks jurisdiction has no power to adjudicate and dispose of a

claim on the merits.”            S. Walk at Broadlands Homeowner’s Ass’n,

Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir.

2013) (hereinafter “Broadlands”).

       Cohen     also     contends     that       the    district      court   erred    in

dismissing his action as frivolous and assessing a PLRA strike

against him on that basis.                An action is properly dismissed as

frivolous “where it lacks an arguable basis either in law or in

fact.”       Neitzke v. Williams, 490 U.S. 319, 325 (1989).                        While

the    district    court       properly     dismissed         Cohen’s    constitutional

claim as frivolous, the district court’s “alternative holdings

on the merits assertedly supporting its dismissal” of Cohen’s

state law claim “were beyond the power of the district court.”

Broadlands,       713   F.3d     at   185    n.4;       see   also    United   States    v.

Wilson, 699 F.3d 789, 793 (4th Cir. 2012) (“[N]o other matter

can     be      decided     without         subject       matter       jurisdiction.”).

Moreover, neither a dismissal without prejudice nor a dismissal

for lack of subject matter jurisdiction counts as a strike under

§ 1915(g).        See Moore v. Maricopa Cty. Sheriff’s Office, 657

F.3d     890,     895     (9th    Cir.      2011)       (lack    of     subject   matter

jurisdiction); McLean v. United States, 566 F.3d 391, 397 (4th

Cir. 2009) (dismissal without prejudice).                        Because only part of

                                              4
Cohen’s action was subject to dismissal on a ground enumerated

under § 1915(g), the dismissal does not count as a strike.                          See

Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir. 2011).

     Accordingly,     we      affirm       the       district    court’s      judgment

dismissing Cohen’s action.            However, we modify the judgment to

reflect     that   Cohen’s     putative         state    law     claim     for   legal

malpractice is dismissed without prejudice for lack of subject

matter    jurisdiction,      and    that       the   dismissal     order   is    not   a

strike under § 1915(g).            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 AS MODIFIED




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