Holmes v. Pearson, (4th Cir. 1996)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 95-8536

MONTREL HOLMES, Plaintiff - Appellant, versus

EDDIE L. PEARSON; JOSEPH GARMAN; WILLIE

BOSWELL; J. A. SMITH, JR., Defendants - Appellees.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. James C. Cacheris, Chief

District Judge. (CA-95-1349-AM)

Submitted: February 7, 1996 Decided: February 29, 1996

Before MURNAGHAN and WILLIAMS, Circuit Judges, and PHILLIPS, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Montrel Holmes, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM

Montrel Holmes 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). 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 merely amending the complaint." Id. at 1066-67. Holmes' complaint was dismissed for failure either to exhaust his state court remedies or to state a cognizable claim under § 3. Because Holmes may be able to save this action by amending his complaint to state a claim for money damages for loss of good time credits (if any), the order which he seeks to appeal is not an appealable final order. Accordingly, we dismiss the appeal for lack of jurisdiction. 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

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