Samuel L. Retherford v. Johns-Manville Company, Daniel W. Zamber, Jr. v. Johns-Manville Company, Calvin Carlton Jones v. Johns-Manville Company

56 F.3d 62, 1995 U.S. App. LEXIS 19118

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 5, 1995
• Docket: 95-1328
• Status: Published

Opinion

56 F.3d 62
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Samuel L. RETHERFORD, Plaintiff-Appellant,
v.
JOHNS-MANVILLE COMPANY, Defendant-Appellee.
Daniel W. ZAMBER, Jr., Plaintiff-Appellant,
v.
JOHNS-MANVILLE COMPANY, Defendant-Appellee.
Calvin Carlton JONES, Plaintiff-Appellant,
v.
JOHNS-MANVILLE COMPANY, Defendant-Appellee.

Nos. 95-1328, 95-1329, 95-1344.

United States Court of Appeals, Fourth Circuit.

Submitted May 9, 1995.
Decided June 5, 1995.

Before HAMILTON and MOTZ, Circuit Judges, and SPROUSE, Senior Circuit Judge.

OPINION

PER CURIAM:

Samuel L. Retherford, Daniel W. Zamber, Jr., and Calvin Carlton Jones appeal from district court orders dismissing their civil complaints as frivolous pursuant to 28 U.S.C. Sec. 1915(d) (1988). We consolidated the appeals and now affirm.

The complaints alleged torts against Defendant for claims arising from Appellants' alleged exposure to asbestos. The complaints conceded that none of the Appellants currently suffers from any injury resulting from the exposure.

The district court dismissed the actions because the Appellants are Virginia state prisoners and had no committees or guardians ad litem to prosecute their actions. The district court erred. Virginia inmates do not require a legal representative to file civil suits.* Cross v. Sundin, 278 S.E.2d 805, 805 (Va.1981). However, the complaints facially fail to state a cause of action because they allege no cognizable injury. See Lo v. Burke, 455 S.E.2d 9, 11-12 (Va.1995). Thus, the dismissals were appropriate.

Although the dismissal orders were without prejudice, this Court has jurisdiction over the appeals because the complaints may not be amended to cure the defect. See Domino Sugar Corp. v. Sugar Workers Local 392, 10 F.3d 1064, 1067 (4th Cir.1993). We affirm the district court's orders. 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.

AFFIRMED

* The law of a plaintiff's domicile determines capacity to be sued. Fed.R.Civ.P. 17(b)