Clark v. Campbell ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7281
DONNIE WAYNE CLARK,
Plaintiff - Appellant,
versus
D. CAMPBELL, Correctional Officer, Mailroom
Supervisor, individually and in his official
capacity; A.G. LEA, Sgt./Institution Investi-
gator, individually and in his official ca-
pacity; E. E. COLEMAN, JR., Clerk of Court,
individually and in his official capacity,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. Robert E. Payne, District Judge.
(CA-93-3)
Submitted: June 8, 1999 Decided: June 18, 1999
Before LUTTIG and MICHAEL, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Donnie Wayne Clark, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Donnie Wayne Clark appeals from the district court’s order
dismissing without prejudice his 42 U.S.C.A. § 1983 (West Supp.
1999) 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 dis-
missal 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, Appellant 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. In light of this dis-
position, we deny Clark’s motion for a court order to address the
payment of the installments on his filing fee. We dispense with
oral argument because the facts and legal contentions are adequate-
ly presented in the materials before the court and argument would
not aid the decisional process.
DISMISSED
2