UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-6028
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES A. BUTLER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-91-44)
Submitted: May 16, 2002 Decided: May 23, 2002
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James A. Butler, Appellant Pro Se. Gurney Wingate Grant, II, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James A. Butler appeals from the district court’s orders
dismissing his Fed. R. Crim. P. 41(e) motion without prejudice and
denying his motion for reconsideration. A dismissal without
prejudice is a final order only if no amendment of the complaint
could cure the defects in the plaintiff’s case. 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, we must determine whether Butler could
save his motion by merely amending and refiling. See id.
Because Butler’s motion was dismissed without prejudice,
Butler could file either another Rule 41(e) motion, amended in
accordance with the district court’s instructions, and/or a motion
for authorization from this court to file a successive 28 U.S.C.A.
§ 2255 (West Supp. 2001) motion attacking his underlying
conviction. In fact, after Butler’s motion was denied, he filed an
amended Rule 41(e) motion in district court. Therefore, the
district court’s orders are not appealable. Accordingly, we deny
premission to proceed in forma pauperis and dismiss the appeal for
lack of jurisdiction under Domino Sugar. 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
2