OpenJurist

107 F3d 867 Sellers v. D Dedian

107 F.3d 867

Jerry SELLERS, Plaintiff-Appellant,
v.
Michael D. DEDIAN, Defendant-Appellee.

No. 96-7872.

United States Court of Appeals, Fourth Circuit.

Submitted Feb. 13, 1997.
Decided Feb. 27, 1997.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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 Sellers, Appellant Pro Se.

Before WIDENER and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

Jerry Sellers 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 Sellers could have amended his complaint to assert some claims, the dismissal order is not appealable. 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 aid the decisional process.

DISMISSED