United States Court of Appeals, Fourth Circuit
Uploaded by
Scribd Government DocsUnited States Court of Appeals, Fourth Circuit
Uploaded by
Scribd Government Docs28 F.
3d 1209
NOTICE: Fourth Circuit I.O.P. 36.6 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unpublished dispositions is disfavored except for establishing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service of copies of cited unpublished dispositions of the Fourth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.
Jimmy Lee JONES, Petitioner Appellant,
v.
Martin MCDADE, Superintendent of Custody; Everitt Barbee;
William H. Andrews; Ralph A. White; Mary J. Ledford; Gene
B. Gurganus; Patricio P. Lara; Catherine Frederick; Bruce
Johnson, Respondents Appellees.
No. 93-7258.
United States Court of Appeals, Fourth Circuit.
Submitted: May 10, 1994.
Decided: June 30, 1994.
Appeal from the United States District Court for the Eastern District of
North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (CA-9322-BO)
Jimmy Lee Jones, Petitioner Pro Se.
E.D.N.C.
DISMISSED.
Before MURNAGHAN and MICHAEL, Circuit Judges, and SPROUSE,
Senior Circuit Judge.
PER CURIAM:
Jimmy Lee Jones, a North Carolina inmate serving a life sentence for the
murder of his wife, appeals from a district court order that dismissed his 28
U.S.C. Sec. 2254 (1988) petition without prejudice because it found that Jones
had not exhausted his state remedies as to all of his claims. We dismiss his
appeal because the district court's dismissal without prejudice is not an
appealable order.
2
This Court has recently held that dismissals without prejudice generally are not
appealable orders. Domino Sugar v. Sugar Workers Local Union 392, 10 F.3d
1064, 1066 (4th Cir.1993). A dismissal without prejudice could be final if "no
amendment [in 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.
Jones could have prevented the district court's dismissal of his action if he had
supplemented his complaint with evidence that he had in fact exhausted the two
claims the district court found unexhausted or if he conclusively abandoned the
two unexhausted claims. He failed to do either. We therefore dismiss the appeal
for lack of jurisdiction because we find the order is not appealable.*
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
We note that Jones is free to refile a Sec. 2254 petition without the two claims
the district court found unexhausted or with evidence that he has exhausted his
state remedies as to all of his claims
