Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.wayne Allen Strickland, Plaintiff-appellant, v. Officer Banick, Roanoke City Police Department, Defendant-appellee, 86 F.3d 1152 (4th Cir. 1996)

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US Court of Appeals for the Fourth Circuit - 86 F.3d 1152 (4th Cir. 1996)

Submitted: May 16, 1996. Decided: May 31, 1996

W.D. Va.


Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (CA-95-1283-R)

Wayne Allen Strickland, Appellant Pro Se.

Before RUSSELL, LUTTIG and WILLIAMS, Circuit Judges.


Appellant appeals from the district court's order dismissing without prejudice his 42 U.S.C. § 1983 (1988) 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). 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. A dismissal without prejudice could be a final, appealable order if "no amendment [to the complaint] could cure the defects in the plaintiff's case." Id. at 1067.

Since Appellant could have amended his complaint to assert some claims, we dismiss the appeal for lack of jurisdiction because we find the 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.