McBride v. Rutherford ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-7805
WILLIE MORRIS MCBRIDE,
Plaintiff - Appellant,
versus
WILLIAM F. RUTHERFORD, Judge; MORRIS B.
GUTTERMAN, Judge; LYDIA CALVERT TAYLOR, Judge;
CHARLES D. GRIFFITH, JR.; NORMAN A. THOMAS;
THOMAS C. DANIEL,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert R. Merhige, Jr., Senior
District Judge. (CA-97-430)
Submitted: October 20, 1998 Decided: November 3, 1998
Before WILKINS and HAMILTON, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Willie Morris McBride, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Willie Morris McBride appeals from the district court’s order
dismissing without prejudice his 42 U.S.C.A. § 1983 (West Supp.
1998) complaint. The district court’s dismissal without prejudice
is not appealable. See Domino Sugar Corp. v. Sugar Workers’ Local
Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993). A dismissal
without prejudice is a final order only if “‘no amendment [in the
complaint] could cure the defects in the plaintiff’s case.’” Id. at
1067 (quoting Coniston Corp. v. Village of Hoffman Estates, 844
F.2d 461, 463 (7th Cir. 1988)). In ascertaining whether a dismissal
without prejudice is reviewable in this court, the court must
determine “whether the plaintiff could save his action by merely
amending his complaint.” Domino Sugar, 10 F.3d at 1066-67. In this
case, McBride may move in the district court to reopen his case and
to file an amended complaint specifically alleging facts sufficient
to state a claim under 42 U.S.C.A. § 1983. Therefore, the dismissal
order is not appealable. Accordingly, we dismiss the appeal for
lack of jurisdiction. We dispense with oral argument because the
facts and legal contentions are adequately presented in the mate-
rials before the court and argument would not aid the decisional
process.
DISMISSED
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