Elijah Smith, III v. Betsy Johnson Regional Hosp, No. 13-2036 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2036 ELIJAH SMITH, III; KELLY SMITH; SANDRA SMITH; GARY SMITH, Plaintiffs - Appellants, v. BETSY JOHNSON REGIONAL HOSPITAL, HOSPITAL; WAKEMED, Hospital, INC.; DUKE REGIONAL Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:13-cv-00493-F) Submitted: December 17, 2013 Decided: December 19, 2013 Before KING, GREGORY, and WYNN, Circuit Judges. Affirmed as modified by unpublished per curiam opinion. Elijah Smith, III, Kelly Smith, Sandra Smith, and Gary Smith, Appellants Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Plaintiffs appeal the district court s order dismissing their action after a review under 28 U.S.C. § 1915 (2006). court We have reviewed the record and agree that the district lacked action. subject matter jurisdiction over Plaintiffs See Smith v. Betsy Johnson Reg l Hosp., Inc., No. 5:13- cv-00493-F (E.D.N.C. Aug. 9, 2013). However, since the dismissal of an action for lack of subject matter jurisdiction is not a decision on without prejudice. the merits, such dismissal should be S. Walk at Broadlands Homeowner s Ass n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013). to We therefore modify the district court s dismissal order reflect that the dismissal is affirm the dismissal as modified. without prejudice, and we 28 U.S.C. § 2106 (2006); MM ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 536 (4th Cir. 2002) ( [W]e are entitled to affirm the court s judgment on alternate grounds, if such grounds are apparent from the record. ). We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED AS MODIFIED 2

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