Jorge Gevara v. State of North Carolina , 489 F. App'x 745 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7173
JORGE GEVARA,
Petitioner – Appellant,
v.
STATE OF NORTH CAROLINA GUILFORD COUNTY,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cv-00373-TDS-LPA)
Submitted: November 20, 2012 Decided: November 27, 2012
Before TRAXLER, Chief Judge, and SHEDD and FLOYD, Circuit
Judges.
Dismissed by unpublished per curiam opinion.
Jorge Gevara, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jorge Gevara seeks to appeal the district court’s
order adopting the recommendation of the magistrate judge and
dismissing his 28 U.S.C. § 2254 (2006) petition without
prejudice because he failed to file it on the proper forms and
failed to submit either the required filing fee or an
application to proceed in forma pauperis. Generally, a district
court’s dismissal of a complaint without prejudice is not
appealable. Domino Sugar Corp. v. Sugar Workers Local Union
392, 10 F.3d 1064, 1066-67 (4th Cir. 1993). However, “if the
grounds of the dismissal make clear that no amendment could cure
the defects in the plaintiff’s case, the order dismissing the
complaint is final in fact and appellate jurisdiction exists.”
Id. at 1066 (internal quotation marks and alteration omitted).
In this case, Gevara may be able to save his petition
by amending it to comply with the district court’s order.
Therefore, the court’s order dismissing Gevara’s petition
without prejudice is not an appealable order. Accordingly, we
deny leave to proceed in forma pauperis and dismiss the appeal
for lack of jurisdiction. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid the
decisional process.
DISMISSED
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