James Haskin v. Henry R. Morton, Etc.

Ninth Circuit

James Haskin v. Henry R. Morton, Etc.

456 F.2d 1071

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 10, 1972

Docket71-2034

StatusPublished

Cited by1 cases

This text of 456 F.2d 1071 (James Haskin v. Henry R. Morton, Etc.) 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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James Haskin v. Henry R. Morton, Etc., 456 F.2d 1071 (9th Cir. 1972).

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Opinion

PER CURIAM:

This appeal is from the District Court’s dismissal of a complaint. In the complaint the appellants generally alleged that certain material had been seized from their place of business and that they had been unlawfully subjected to state prosecution upon the charge that the seized material was obscene. In their complaint they prayed for damages, an injunction against the state court criminal proceedings, and a declaratory judgment that certain California Penal Code provisions are unconstitutional. After certain preliminary proceedings, the District Court dismissed the complaint upon its finding that the same failed to state a claim upon which it might grant relief. In dismissing the complaint, however, the District Court at the same time granted the plaintiffs leave to amend their complaint and prescribed a period of sixty days within which they might do so. No amendment was presented, and the appeal followed.

Ordinarily, an appeal may not be taken from an Order dismissing a complaint only, rather than the action. Jackson v. Nelson, 405 F.2d 872 (9th Cir. 1968). It is especially important *1072 that this rule be applied when one whose complaint is dismissed is granted leave to file an amended complaint. Epton v. Hogan, 355 F.2d 203 (2d Cir. 1966).

We recognize that there are unusual cases in which an appeal has been allowed from an Order dismissing a complaint. See e. g., Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962). In the circumstances of the instant case, however, we see no reason to depart from the ordinary principle applicable to the appealability, vel non, of an Order dismissing a complaint but allowing for the amendment thereof. Accordingly, the appeal herein is

Dismissed.

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PER CURIAM:

This appeal is from the District Court’s dismissal of a complaint. In the complaint the appellants generally alleged that certain material had been seized from their place of business and that they had been unlawfully subjected to state prosecution upon the charge that the seized material was obscene. In their complaint they prayed for damages, an injunction against the state court criminal proceedings, and a declaratory judgment that certain California Penal Code provisions are unconstitutional. After certain preliminary proceedings, the District Court dismissed the complaint upon its finding that the same failed to state a claim upon which it might grant relief. In dismissing the complaint, however, the District Court at the same time granted the plaintiffs leave to amend their complaint and prescribed a period of sixty days within which they might do so. No amendment was presented, and the appeal followed.

Ordinarily, an appeal may not be taken from an Order dismissing a complaint only, rather than the action. Jackson v. Nelson, 405 F.2d 872 (9th Cir. 1968). It is especially important *1072 that this rule be applied when one whose complaint is dismissed is granted leave to file an amended complaint. Epton v. Hogan, 355 F.2d 203 (2d Cir. 1966).

We recognize that there are unusual cases in which an appeal has been allowed from an Order dismissing a complaint. See e. g., Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962). In the circumstances of the instant case, however, we see no reason to depart from the ordinary principle applicable to the appealability, vel non, of an Order dismissing a complaint but allowing for the amendment thereof. Accordingly, the appeal herein is

Dismissed.

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456 F.2d 1071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-haskin-v-henry-r-morton-etc-ca9-1972.

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