UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-6894

DAVID BARKSDALE, JR.,

Plaintiff - Appellant,

versus

VIRGINIA DEPARTMENT OF CORRECTIONS; STAUNTON CORRECTIONAL CENTER; SANDRA EARLY, Nurse; MARSHALL, Nurse,

Defendants - Appellees.

Appeal from the United States District Court for the Western Dis- trict of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (CA-98-331-R)

Submitted: September 30, 1998 Decided: October 20, 1998

Before ERVIN, LUTTIG, and WILLIAMS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Barksdale, Jr., Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

David Barksdale, Jr., appeals from the district court’s order

dismissing without prejudice his

(West Supp.

1998) complaint. The district court’s dismissal without prejudice

is not appealable. See Domino Sugar Corp. v. Sugar Workers’ Local

Union 392,

(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.’”

at

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

(7th Cir. 1988)). 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 his complaint.” Domino Sugar,

. In this

case, Barksdale may move in the district court to reopen his case

and to file an amended complaint specifically alleging facts

sufficient to state a claim under

. 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

2