Mallory v. Poindexter ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1551
CALVIN RUFFIN MALLORY,
Plaintiff – Appellant,
v.
HELEN FAHEY, Chairman of Virginia Parole Board, etc.; WALTER
RILEY, etc.,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:10-cv-00283-REP)
Submitted: July 27, 2010 Decided: August 5, 2010
Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.
Dismissed by unpublished per curiam opinion.
Calvin Ruffin Mallory, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Ruffin Mallory seeks to appeal the district
court’s dismissal of his complaint without prejudice because he
failed to comply with the district court’s October 4, 2002,
order enjoining him from filing pleadings that do not comport
with certain requirements, such as legibility and submission on
the proper forms.
Generally, a district court’s dismissal of a complaint
without prejudice is not appealable. See Domino Sugar Corp. v.
Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.
1993) (holding that “a plaintiff may not appeal the dismissal of
his complaint without prejudice unless the grounds for dismissal
clearly indicate that no amendment [in the complaint] could cure
the defects in the plaintiff’s case”) (alteration in original)
(internal quotation marks omitted). 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 (alteration in original) (internal quotation marks
omitted).
In this case, Mallory may be able to save his action
by amending his complaint to comply with the district court’s
2002 order. Therefore, the district court’s dismissal of
Mallory’s complaint without prejudice is not an appealable final
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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 in the materials before the court and
argument would not aid the decisional process.
DISMISSED
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