Jorge Gevara v. State of North Carolina, No. 12-7173 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7173 JORGE GEVARA, Petitioner Appellant, v. STATE OF NORTH CAROLINA GUILFORD COUNTY, Respondent -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 Chief Judge, Decided: November 27, 2012 and SHEDD and FLOYD, Circuit Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 2 in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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