Mallory v. Atkinson, (4th Cir. 2009)

Status: Not Published

Docket Number: 09-1318

Linked as:

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-1318

CALVIN RUFFIN MALLORY,

Plaintiff Appellant,

v.

DEBORAH ATKINSON, Director, VA Hospital; DR. POINDEXTER,

Defendants Appellees.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Richard L. Williams, Senior

District Judge. (3:09-cv-00139-RLW)

Submitted: July 30, 2009 Decided: August 4, 2009

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Calvin Ruffin Mallory, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Calvin Ruffin Mallory seeks to appeal the district court's dismissal of his complaint without prejudice because Mallory failed to comply with Federal Rule of Civil Procedure 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief," and the district court's October 4, 2002, order enjoining Mallory from filing pleadings that do not comport with certain requirements.

Generally, a district court's dismissal of a complaint without prejudice is not appealable. See Domino Sugar Corp. v.

Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.

1993) (holding that "a plaintiff may not appeal the dismissal of his complaint without prejudice unless the grounds for dismissal clearly indicate that no amendment in the complaint could cure the defects in the plaintiff's case") (internal quotation marks, alteration, and citation omitted). However, "if the grounds of the dismissal make clear that no amendment could cure the defects in the plaintiff's case, the order dismissing the complaint is final in fact and appellate jurisdiction exists." Id. at 1066 (internal quotation marks, alteration, and citation omitted).

In this case, Mallory may be able to save his action by amending his complaint to comply with Federal Rule of Civil Procedure 8 and the district court's October 4, 2002, order.

Therefore, the district court's dismissal of Mallory's complaint without prejudice 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 air the decisional process.