Fleming v. City of Charlottesville ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1768
JAMES N. FLEMING; ELLISON JACKSON,
Plaintiffs - Appellants,
versus
CITY OF CHARLOTTESVILLE,
Defendant - Appellee,
and
JANE DOE; JOHN DOE,
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (CA-00-77-3)
Submitted: December 11, 2001 Decided: December 20, 2001
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
J. Benjamin Dick, Charlottesville, Virginia, for Appellant.
Richard W. Schaffer, D. Hayden Fisher, SCHAFFER & CABELL, P.C.,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
James N. Fleming and Ellison Jackson (“Plaintiffs”) appeal
from the district court’s order dismissing without prejudice their
42 U.S.C.A. § 1983 (West Supp. 2001) claim. We dismiss the appeal
for lack of jurisdiction.
The district court’s order dismissing without prejudice Plain-
tiffs’ selective prosecution and liberty interest claims 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 [of the com-
plaint] 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, we must
determine “whether the plaintiff could save his action by merely
amending his complaint.” Domino Sugar, 10 F.3d at 1066-67.
Because their complaint was dismissed without prejudice,
Plaintiffs may yet file an amended complaint specifically alleging
facts sufficient to state their claims under § 1983. Therefore,
the dismissal order before us is not appealable. Accordingly, we
dismiss the appeal for lack of jurisdiction under Domino Sugar. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
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