Mallory v. Virginia Parole Board

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7458
CALVIN RUFFIN MALLORY,
Plaintiff - Appellant,
v.
VIRGINIA PAROLE BOARD; VIRGINIA DEPARTMENT OF CORRECTIONS,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:09-cv-00466-JRS)
Submitted: December 17, 2009 Decided: December 29, 2009
Before WILKINSON, NIEMEYER, and AGEE, 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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
October 4, 2002, order. Therefore, the district court’s
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dismissal of Mallory’s complaint without prejudice is not an
appealable final order. Accordingly, we 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 air the
decisional process.
DISMISSED
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