Michael Wayne Montgomery v. Parker Evatt, Commissioner, Scdc T. Travis Medlock, Attorney General of the State of South Carolina

25 F.3d 1040, 1994 U.S. App. LEXIS 20813, 1994 WL 201008

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 19, 1994
• Docket: 94-6164
• Status: Published

Opinion

25 F.3d 1040
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Michael Wayne MONTGOMERY, Petitioner Appellant,
v.
Parker EVATT, Commissioner, SCDC; T. Travis Medlock,
Attorney General of the State of South Carolina,
Respondents Appellees.

No. 94-6164.

United States Court of Appeals, Fourth Circuit.

Submitted April 21, 1994.
Decided May 19, 1994.

Appeal from the United States District Court for the District of South Carolina, at Columbia. G. Ross Anderson, Jr., District Judge. (CA-93-538-3)

Michael Wayne Montgomery, appellant pro se.

Donald John Zelenka, Chief Deputy Atty. Gen., Columbia, SC, for appellees.

D.S.C.

DISMISSED.

Before ERVIN, Chief Judge, MICHAEL, Circuit Judge, and CHAPMAN, Senior Circuit Judge.

PER CURIAM:

Appellant appeals from a district court order accepting the recommendation of the magistrate judge and dismissing without prejudice his request for habeas corpus relief on the ground that appellant's remedy for his alleged subjection to cruel and unusual punishment exists under 42 U.S.C. Sec. 1983 (1988). A plaintiff may not appeal from a dismissal without prejudice where he may continue his action in the district court by amending his complaint. Domino Sugar v. Sugar Workers Local 392, 10 F.3d 1064, 1066-67 (4th Cir.1993). Since, in this case, the appellant may continue his action by requesting relief under Sec. 1983, appellate review is foreclosed.

Accordingly, we dismiss the appeal. 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.