D. C. Dockery v. Albert Dockery and Sarah Calhoun

Ninth Circuit

D. C. Dockery v. Albert Dockery and Sarah Calhoun

437 F.2d 898, 8 U.C.C. Rep. Serv. (West) 901

CourtCourt of Appeals for the Ninth Circuit

DecidedJanuary 15, 1971

Docket24163

StatusPublished

Cited by3 cases

This text of 437 F.2d 898 (D. C. Dockery v. Albert Dockery and Sarah Calhoun) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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D. C. Dockery v. Albert Dockery and Sarah Calhoun, 437 F.2d 898, 8 U.C.C. Rep. Serv. (West) 901 (9th Cir. 1971).

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Opinion

PER CURIAM:

D. C. Dockery, a California State prisoner, appeals from an order dismissing his complaint pursuant to Rule 12, Federal Rules of Civil Procedure. The district court dismissed the complaint because of plaintiff’s failure “to elaborate the facts which underlie his claim” in this civil rights action against plaintiff’s brother and sister.

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 appealed from is not an ap-pealable order. Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir. 1968).

The appeal is accordingly dismissed for lack of jurisdiction. Plaintiff may move in the district court for leave to file an amended complaint. Thereafter, further proceedings should be governed by the procedure outlined in Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970), and cases cited.

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PER CURIAM:

D. C. Dockery, a California State prisoner, appeals from an order dismissing his complaint pursuant to Rule 12, Federal Rules of Civil Procedure. The district court dismissed the complaint because of plaintiff’s failure “to elaborate the facts which underlie his claim” in this civil rights action against plaintiff’s brother and sister.

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 appealed from is not an ap-pealable order. Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir. 1968).

The appeal is accordingly dismissed for lack of jurisdiction. Plaintiff may move in the district court for leave to file an amended complaint. Thereafter, further proceedings should be governed by the procedure outlined in Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970), and cases cited.

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437 F.2d 898, 8 U.C.C. Rep. Serv. (West) 901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/d-c-dockery-v-albert-dockery-and-sarah-calhoun-ca9-1971.

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