UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1746
ELBERT JOHN BENJAMIN RUTHERFORD,
Plaintiff - Appellant,
versus
UNITED STATES DRUG ENFORCEMENT ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:07-cv-01871-HMH)
Submitted: December 13, 2007 Decided: December 17, 2007
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Elbert John Benjamin Rutherford, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elbert Rutherford seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing his civil action without prejudice. This court may
exercise jurisdiction only over final orders, 28 U.S.C. § 1291
(2000); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 545-46 (1949). Because the deficiencies
identified by the district court may be remedied by the filing of
a complaint that names individual defendants, we conclude that this
portion of the order Rutherford seeks to appeal is neither a final
order nor an appealable interlocutory or collateral order. See
Domino Sugar Corp. v. Sugar Worker’s Local Union 392, 10 F.3d 1064,
1066-67 (4th Cir. 1993) (a dismissal without prejudice is generally
not appealable). A dismissal without prejudice, however, could be
final if no amendment to the complaint would cure the defect in the
plaintiff’s case. Id. at 1066-67. Therefore the portion of the
order appealed stating defects in this case that could not be cured
by amendment to the complaint is appealable and this court has
jurisdiction. Those claims are affirmed on the reasoning stated by
the district court. Rutherford v. Drug Enforcement Admin, No.
6:07-cv-01871-MHM (D.S.C. July 27, 2007).
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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 IN PART;
AFFIRMED IN PART
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