Opinion · Court of Appeals for the Ninth Circuit

Roy Douglas Hurst v. State of California

Roy Douglas Hurst v. State of Cal., 451 F.2d 350 (9th Cir. 1971)

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1971-12-10
Topic
general

PER CURIAM: Plaintiffs, inmates at California Men’s Colony, appeal from an “Order Dismissing Complaint” that was based upon their failure to allege the names of any defendants in the caption of the complaint other than the “State of California, Et Al.” The State of California was found to be an improper defendant under the Civil Rights Act, 42 U.S.C. § 1983. A dismissal of a complaint without dismissal of the action is not a “final order” under 28 U.S.C. § 1291 because the complaint is still open to amendment. Since we find no “special circumstances” here which indicate that the court below determined that the complaint could not be saved by amendment, the order is not appealable. Jackson v. Nelson (9 Cir. 1968), 405 F.2d 872, 873.

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Cited by
7 opinions
HURST v. STATE OF CALIFORNIA,451 F.2d 350(9th Cir. 1971)
ROY DOUGLAS HURST ET AL., PLAINTIFFS-APPELLANTS, v. STATE OF CALIFORNIA ET
AL., DEFENDANT-APPELLEE.
No. 71-1738.
United States Court of Appeals, Ninth Circuit.
November 16, 1971.
Rehearing Denied December 10, 1971.
Page 351
Roy D. Hurst, Lloyd Daniels and Richard E. Deeth, in pro. per.

Evelle J. Younger, Cal. Atty. Gen., William E. James, Asst. Atty. Gen., Russell Iungerich, Jack K. Weber, Deputy Attys. Gen., Los Angeles, Cal., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before HAMLEY, BROWNING and CARTER, Circuit Judges.
PER CURIAM:
[1] Plaintiffs, inmates at California Men's Colony, appeal from an "Order Dismissing Complaint" that was based upon their failure to allege the names of any defendants in the caption of the complaint other than the "State of California, Et Al." The State of California was found to be an improper defendant under the Civil Rights Act,42 U.S.C. § 1983.

[2] A dismissal of a complaint without dismissal of the action is not a "final order" under28 U.S.C. § 1291because the complaint is still open to amendment. Since we find no "special circumstances" here which indicate that the court below determined that the complaint could not be saved by amendment, the order is not appealable. Jackson v. Nelson (9 Cir. 1968),405 F.2d 872, 873.See alsoRule 21, Federal Rules of Civil Procedure.

[3] The appeal is dismissed for lack of jurisdiction.Page 361