Smith v. Robinson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-7751

AALON SMITH,

Plaintiff - Appellant,

versus

DAVID ROBINSON, Warden of N.C.C.; T. JOHNSON,
Correctional Officer; J. MARSHALL, Lieutenant
Supervisor,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-03-660)

Submitted: January 30, 2004 Decided: March 3, 2004

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Aalon Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Aalon Smith appeals the district court’s order dismissing

without prejudice his 42 U.S.C. § 1983 (2000) action. The district

court dismissed the complaint pursuant to Fed. R. Civ. P. 41(b) for

failure to immediately notify the court of his change in address.

Because of that failure, correspondence from the court addressed to

Smith was returned as undeliverable.

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 is a final order only if “‘no amendment [in the

complaint] could cure the defects in the plaintiff’s case.’” Id.

at 1067 (quoting Coniston Corp. v. Village of Hoffman Estates, 844

F.2d 461, 463 (7th Cir. 1988)). In ascertaining whether a

dismissal without prejudice is reviewable in this court, we must

determine “whether the plaintiff could save his action by merely

amending his complaint.” Domino Sugar, 10 F.3d at 1066-67. In

this case, Smith may move in the district court to reopen his case

and to file a signed complaint giving his present address.

Therefore, the dismissal order is not appealable.

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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