Brian A. Brown, Plaintiff-appellant, v. State of Maryland, Prince George's County, Prince George'scounty Police Department, State of Maryland,defendants-appellees, 854 F.2d 1316 (4th Cir. 1988)

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US Court of Appeals for the Fourth Circuit - 854 F.2d 1316 (4th Cir. 1988) Submitted June 24, 1988. Decided Aug. 12, 1988

Brian A. Brown, appellant pro se.

John Trahey Beamer, II, County Attorney's Office, for appellees.

Before CHAPMAN and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Brian A. Brown appeals the voluntary dismissal of his 42 U.S.C. § 1983 action. He has also moved for an extension of time to appeal. We dismiss the appeal.

This Court has no authority to grant an extension of time to appeal, and Brown's motion for an extension of time to appeal is therefore denied. Fed. R. App. P. 26(b). No extension of time to appeal is necessary in this case, however. The district court dismissed this case by typing its order in the margin of Brown's motion for a voluntary dismissal. This marginal order does not satisfy the separate document requirement of Fed. R. Civ. P. 58. As the judgment has not been entered in accordance with Rule 58, this appeal is not untimely because the time for filing an appeal has not yet begun. Fed. R. App. P. 4(a) (6); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 688-89 (4th Cir. 1978).1 

The appeal must nevertheless be dismissed. Voluntary dismissals are unappealable if the dismissal was without prejudice and any conditions the plaintiff placed on the dismissal were met. 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil 2d Sec. 2376, at 247. The dismissal in this case was without prejudice, even though the district court did not expressly so state, as dismissals under Fed. R. Civ. P. 41(a) (2) are without prejudice " [u]nless otherwise specified in the order." In addition, neither Brown nor the district court placed any conditions on the voluntary dismissal. Thus, the voluntary dismissal in this case is unappealable. Compare Unioil, Inc. v. E.F. Hutton & Co. Inc., 809 F.2d 548, 555-56 (9th Cir. 1986) (collecting cases which discuss when appeal is permitted if dismissal is conditional), cert. denied, 56 U.S.L.W. 3217-18 (U.S. Oct. 5, 1987) (No. 86-1894).

We therefore dismiss the appeal. We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.



This Court can hear the appeal even though the judgment was never entered in compliance with Fed. R. Civ. P. 58. Caperton, 585 F.2d at 691