Paul M. Deloatch, Petitioner-appellant, v. North Carolina Attorney General; Rick Jackson, Respondents-appellees, 73 F.3d 356 (4th Cir. 1996)

Appellant appeals the dismissal without prejudice of his 28 U.S.C. § 2254 (1988) petition for failure to exhaust state remedies. Generally, dismissals without prejudice are not appealable, unless no amendment to the complaint could cure the defects in the plaintiff's case. Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993). We find that Appellant may be able to save this action through amendment.

The district court, accepting the magistrate judge's recommendation, dismissed Appellant's petition because it contained exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 519 (1982). Appellant may either exhaust all the claims in the petition and then refile his petition, or he may amend his petition by deleting any unexhausted claims and resubmitting the amended petition to the district court. Id. Thus, while the district court order here might be read to allow resubmission only after exhaustion, it appears that the order merely did not enumerate specifically all of Appellant's options.

Because the order which Appellant seeks to appeal is not an appealable final order, see Domino Sugar Corp., 10 F.3d at 1066-67, we deny a certificate of probable cause to appeal, deny leave to proceed in forma pauperis, and dismiss the appeal as interlocutory. 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