William Russell Spear, Plaintiff-appellant, v. United States Marshal's Service; Joe Smith; Unknownmarshal; Judge Forehand; Clerks Unknown, City Ofchesapeake, Virginia; John R. Simpson;united States Parolecommission,defendants-appellees, 74 F.3d 1233 (4th Cir. 1996)

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U.S. Court of Appeals for the Fourth Circuit - 74 F.3d 1233 (4th Cir. 1996)

Submitted: October 17, 1995. Decided: January 23, 1996

William Russell Spear, Appellant Pro Se.

Before HAMILTON, LUTTIG, and MICHAEL, Circuit Judges.


Appellant appeals the district court's dismissal without prejudice of his 42 U.S.C. § 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. § 1291 (1988), and certain interlocutory and collateral orders, 28 U.S.C. § 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.

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.