Jerry C. Mallory v. North Carolina State Lumbee River Electric Membership Corporation

108 F.3d 1372

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Jerry C. MALLORY, Plaintiff-Appellant,
v.
NORTH CAROLINA STATE; Lumbee River Electric Membership
Corporation, Defendants-Appellees.

No. 96-1997.

United States Court of Appeals, Fourth Circuit.

Submitted Feb. 27, 1997.
Decided March 10, 1997.

Jerry C. Mallory, Appellant Pro Se.

Ralf Frederick Haskell, Sr., Special Deputy Attorney General, Raleigh, North Carolina; Arlie Jacobs, LOCKLEAR, BROOKS & JACOBS, Pembroke, North Carolina; Thomas Edward Schroeder, W. Britton Smith, Jr., SMITH, SCHROEDER, THOMAS & MEANS, LLP, Charlotte, North Carolina, for Appellees.

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

PER CURIAM:

1

Appellant appeals from the district court's order dismissing without prejudice his 42 U.S.C. § 1983 (1994) complaint. 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 could be final if "no amendment to the complaint could cure defects in the plaintiff's case." Id. at 1067. 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 the complaint." Id. at 1066-67.

2

Because Appellant could have amended his complaint to assert some claims, 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.

3

DISMISSED.