Jorge Gevara v. State of North Carolina

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying updating fee code Originating case number: 1:12-cv-00373-TDS-LPA Copies to all parties and the district court/agency. [998988981]. Mailed to: Jorge Gevara. [12-7173]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7173

JORGE GEVARA,
Petitioner – Appellant,
v.
STATE OF NORTH CAROLINA GUILFORD COUNTY,
Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cv-00373-TDS-LPA)

Submitted:

November 20, 2012

Before TRAXLER,
Judges.

Chief

Judge,

Decided: November 27, 2012

and

SHEDD

and

FLOYD,

Circuit

Dismissed by unpublished per curiam opinion.

Jorge Gevara, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jorge

Gevara

seeks

to

appeal

the

district

court’s

order adopting the recommendation of the magistrate judge and
dismissing

his

28

U.S.C.

§ 2254

(2006)

petition

without

prejudice because he failed to file it on the proper forms and
failed

to

submit

either

the

required

application to proceed in forma pauperis.
court’s

dismissal

appealable.

of

a

complaint

filing

fee

or

an

Generally, a district

without

prejudice

is

not

Domino Sugar Corp. v. Sugar Workers Local Union

392, 10 F.3d 1064, 1066-67 (4th Cir. 1993).

However, “if the

grounds of the dismissal make clear that no amendment could cure
the defects in the plaintiff’s case, the order dismissing the
complaint is final in fact and appellate jurisdiction exists.”
Id. at 1066 (internal quotation marks and alteration omitted).
In this case, Gevara may be able to save his petition
by

amending

Therefore,

it
the

to

comply

court’s

with

order

the

district

dismissing

court’s

Gevara’s

without prejudice is not an appealable order.

order.

petition

Accordingly, we

deny leave to proceed in forma pauperis and dismiss the appeal
for

lack

of

jurisdiction.

We

dispense

with

oral

argument

because the facts and legal contentions are adequately presented

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in the materials before the court and argument would not aid the
decisional process.

DISMISSED

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