United States Court of Appeals, Fourth Circuit
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3d 1233
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished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of the case and requires service of copies of cited unpublished dispositions of the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.
William Russell SPEAR, Plaintiff-Appellant,
v.
UNITED STATES MARSHAL'S SERVICE; Joe Smith;
Unknown
Marshal; Judge Forehand; Clerks Unknown, City of
Chesapeake, Virginia; John R. Simpson;
United States Parole
Commission,
DefendantsAppellees.
No. 95-7169.
United States Court of Appeals, Fourth Circuit.
Submitted: October 17, 1995.
Decided: January 23, 1996.
William Russell Spear, Appellant Pro Se.
Before HAMILTON, LUTTIG, and MICHAEL, Circuit Judges.
PER CURIAM:
Appellant appeals the district court's dismissal without prejudice of his 42
U.S.C. Sec. 1983 (1988) action for failure to respond to a court order
requesting more information in regard to his claims. We dismiss the appeal for
lack of jurisdiction because the order is not appealable. This court may exercise
jurisdiction only over final orders, 28 U.S.C. Sec. 1291 (1988), and certain
interlocutory and collateral orders, 28 U.S.C. Sec. 1292 (1988); Fed.R.Civ.P.
54(b); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). The
order here appealed is neither a final order nor an appealable interlocutory or
collateral order.
2
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
amending the complaint." Id. at 1066-67.
Since Appellant could have amended his complaint to cure the defects noted in
the district court's order requesting more information, we dismiss the appeal for
lack of jurisdiction because we find that the dismissal 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
