NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 09-1644
                                    ____________

                                  ROBERT KENNY,
                                                          Appellant
                                           v.

                        UNITED STATES; STEVEN WALD;
                       MARK TRYBA; ANDRIA GREENIDGE

                                    ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                          (D.C. Civ. No. 3-08-cv-03921 )
                  District Judge: Honorable Garrett E. Brown, Jr.

                                    ____________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                               February 22, 2010
       Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges.

                                 (Filed: April 2, 2010)
                                     ____________

                                      OPINION


WEIS, Circuit Judge.

             The plaintiff’s complaint requested damages and equitable relief against the

United States and named employees of the Internal Revenue Service for retaliation based

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on the plaintiff’s allegations of misconduct on the part of the IRS. On February 5, 2009,

the District Court ordered that “Defendants’ motion to dismiss all counts of the

Complaint is [granted] without prejudice; and . . . Plaintiff’s Motion for a Preliminary

Injunction is [dismissed] as moot.”

                This Court has held that a dismissal without prejudice generally is a non-

final order and is not appealable. “Only if the plaintiff cannot amend or declares his

intention to stand on his complaint does the order become final and appealable.” Borelli

v. City of Reading, 

, 951-52 (3d Cir. 1976).

                In his Reply Brief before this Court, plaintiff states, “If and when the

district court again has jurisdiction of this case, [plaintiff] will move to amend the

complaint to correct any deficiencies . . . .” Although not in proper form, we construe the

statement as establishing the plaintiff’s intention not to stand on his complaint. The Court

calls plaintiff’s attention to Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 

, 251-52 (3d Cir. 2007), for the proper procedures to amend his complaint.

                Because we find that this appeal is from a non-final order, the appeal will

be dismissed.




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