McLean v. Members of State Bd. of Corr. ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7397
QUENTIN MCLEAN,
Plaintiff - Appellant,
versus
MEMBERS OF THE STATE BOARD OF CORRECTIONS; DI-
RECTOR OF HEALTHCARE SERVICES, Contracted with
the Virginia Department; UNKNOWN AGENCIES,
Agents, Agencies, servants and other persons
unknown to the plaintiff at this time, but re-
serves the right to amend his suit to include
as indicated when plaintiff becomes aware of
their capacities,
Defendants - Appellees.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CA-99-628-7)
Submitted: December 16, 1999 Decided: December 30, 1999
Before MURNAGHAN and MOTZ, Circuit Judges, and BUTZNER, Senior Cir-
cuit Judge.
Dismissed by unpublished per curiam opinion.
Quentin McLean, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Quentin McLean appeals the district court's order dismissing
without prejudice his 42 U.S.C.A. § 1983 (West Supp. 1999) com-
plaint, pursuant to 28 U.S.C.A. § 1915(g) (West Supp. 1999), and
denying reconsideration of that order under Fed. R. Civ. P. 59(e).
We have reviewed the record and the district court's opinion and
orders and find the district court’s order dismissing McLean’s
complaint without prejudice is not an appealable order. See Domino
Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67
(4th Cir. 1993). We therefore dismiss McLean’s appeal as to both
orders.
In Domino Sugar, we held that the dismissal of a complaint
without prejudice may not be appealed unless the district court
clearly indicates that the defects in the plaintiff’s case cannot
be cured by amending and refiling the complaint. The district
court in this case left open the possibility that McLean could
amend the allegations in his complaint or plead new facts that
could establish that he is in imminent danger of serious physical
harm under § 1915(g).
Accordingly, while we construe McLean’s petition for review of
the denial of his motion for reconsideration as a renewed notice of
appeal and grant it as such, we dismiss the appeal and deny
McLean’s motion for emergency medical relief. We also deny
McLean’s petition for writ of mandamus for failure to allege
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circumstances justifying invocation of this extraordinary writ and
his motion to extend time to file a response. We also deny
McLean’s motions for oral argument and to participate in oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
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