STANLEY LINDER v. ISAAC MCDUFFIE STONE III HARRIS BEACH SEAN THORNTON PATRICIA GRANT (2016)

Stanley D. Linder seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing without prejudice his 42 U.S.C. § 1983 (2012) complaint for failing to plead, at least as to one count, sufficient facts to state a claim. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949).

An order dismissing a complaint without prejudice is not an appealable final order if “the plaintiff could save his action by merely amending his complaint.” Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993). Where a district court dismisses an action for failure to plead sufficient facts in the complaint, we lack appellate jurisdiction because the plaintiff could amend the complaint to cure the pleading deficiency. Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 624 (4th Cir. 2015).

Accordingly, we deny Linder's motion to appoint counsel, dismiss the appeal, and remand the case to the district court with instructions to allow Linder to file an amended complaint. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

DISMISSED AND REMANDED

PER CURIAM: