Elijah Smith, III v. Betsy Johnson Regional Hosp , 548 F. App'x 80 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2036
ELIJAH SMITH, III; KELLY SMITH; SANDRA SMITH; GARY SMITH,
Plaintiffs - Appellants,
v.
BETSY JOHNSON REGIONAL HOSPITAL, INC.; DUKE REGIONAL
HOSPITAL; WAKEMED, Hospital,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:13-cv-00493-F)
Submitted: December 17, 2013 Decided: December 19, 2013
Before KING, GREGORY, and WYNN, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
Elijah Smith, III, Kelly Smith, Sandra Smith, and Gary Smith,
Appellants Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Plaintiffs appeal the district court’s order
dismissing their action after a review under 28 U.S.C. § 1915(2006). We have reviewed the record and agree that the district
court lacked subject matter jurisdiction over Plaintiffs’
action. See Smith v. Betsy Johnson Reg’l Hosp., Inc., No. 5:13-
cv-00493-F (E.D.N.C. Aug. 9, 2013). However, since the
dismissal of an action for lack of subject matter jurisdiction
is not a decision on the merits, such dismissal should be
without prejudice. S. Walk at Broadlands Homeowner’s Ass’n,
Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir.
2013). We therefore modify the district court’s dismissal order
to reflect that the dismissal is without prejudice, and we
affirm the dismissal as modified. 28 U.S.C. § 2106 (2006); MM
ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 536
(4th Cir. 2002) (“[W]e are entitled to affirm the court’s
judgment on alternate grounds, if such grounds are apparent from
the record.”).
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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