Bailey-El v. Prison Healthcare ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7847
RONALD G. BAILEY-EL,
Plaintiff - Appellant,
versus
PRISON HEALTHCARE SERVICES,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, District Judge.
(CA-98-1510-WMN)
Submitted: May 4, 1999 Decided: June 24, 1999
Before WIDENER and WILLIAMS, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Ronald G. Bailey-El, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ronald Bailey-El appeals from the district court’s order
dismissing without prejudice his complaint under 42 U.S.C.A. § 1983(West Supp. 1998). 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 [to the
complaint] could cure the defects in the plaintiff’s case.’” Id.
at 1066 (quoting Coniston Corp. v. Village of Hoffman Estates, 844
F.2d 461, 463 (7th Cir. 1988)). In ascertaining whether a dismissal
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, Bailey-El may move the district court to reopen his case
and file an amended complaint either realleging Prison Healthcare
Services as the proper defendant or, alternatively, naming another
party as the proper defendant. Therefore, the dismissal order is
not appealable. 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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