John C. McGuckin v. Dr. Smith John C. Medlen, Dr.

974 F.2d 1050, 92 Cal. Daily Op. Serv. 7224, 23 Fed. R. Serv. 3d 922, 92 Daily Journal DAR 11690, 1992 U.S. App. LEXIS 19402, 1992 WL 201087
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 24, 1992
Docket90-16651
StatusPublished
Cited by2,012 cases

This text of 974 F.2d 1050 (John C. McGuckin v. Dr. Smith John C. Medlen, Dr.) 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.

Bluebook
John C. McGuckin v. Dr. Smith John C. Medlen, Dr., 974 F.2d 1050, 92 Cal. Daily Op. Serv. 7224, 23 Fed. R. Serv. 3d 922, 92 Daily Journal DAR 11690, 1992 U.S. App. LEXIS 19402, 1992 WL 201087 (9th Cir. 1992).

Opinions

REINHARDT, Circuit Judge:

John McGuckin, an Arizona state prisoner, brought a pro se 42 U.S.C. § 1983 action against several prison medical authorities at the Arizona Department of Corrections (ADOC) and Dr. John C. Medien, a private orthopedic specialist who does consulting work for the ADOC. McGuckin alleged that the defendants were deliberately indifferent to his serious medical needs. The district court dismissed without prejudice his claims against defendants Dr. Dimitri Catsaros and Ron Buttram, and granted summary judgment in favor of defendants Dr. Theodore J. Smith and Dr. John G. Medien. McGuckin appeals.

Jurisdiction

Although neither party has addressed the question, we are required to raise issues concerning our jurisdiction sua sponte. See Abernathy v. Southern California Edison, 885 F.2d 525, 527 (9th Cir.1989). The dismissal of defendants Catsaros and Buttram was “without prejudice”: if the dismissal did not constitute a “final decision[ ]” of the district court, then we do [1053]*1053not have jurisdiction over McGuckin’s appeal. 28 U.S.C. § 1291.1

Final rulings generally “en[d] the litigation on the merits”. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945); see also Firstier Mortg. Co. v. Investors Mortg. Ins. Co., — U.S. -, - & n. 3, 111 S.Ct. 648, 651 & n. 3, 112 L.Ed.2d 743 (1991) (noting rule and exception). Usually, a dismissal without prejudice does not do so. “A dismissal without prejudice opens the door to a renewed contest. A dismissal with prejudice brings the contest to a close.” Salveson v. Western States Bankcard Ass’n, 731 F.2d 1423, 1432 (9th Cir.1984).

However, the § 1291 “finality” inquiry is not necessarily, dependent on whether the district court’s action operates as an adjudication on the merits. For example, while dismissals based on lack of jurisdiction are not adjudications on the merits, they nevertheless are “final orders” and are appealable under § 1291. See Rogers v. United States, 902 F.2d 1268, 1269 (7th Cir.1990) (subject matter jurisdiction); Reuber v. United States, 773 F.2d 1367, 1368 (D.C.Cir.1985) (per curiam) (personal jurisdiction). Rather, the inquiry is whether the decision “ends the litigation and leaves nothing more for the court to do.” United States v. Lee, 786 F.2d 951, 956 (9th Cir.1986) (citing cases). “[A]n order which effectively sends a party out of court is ap-pealable.” Id.; see also Herrington v. County of Sonoma, 706 F.2d 938, 939 (9th Cir.1983) (same).

A district court’s dismissal “without prejudice” may have one of two effects. First, the district court may intend to dismiss a currently-filed claim or complaint but permit the plaintiff to amend his complaint in the same action. In such a case, the district court does not “ ‘leave[ ] nothing for the court to do but execute the judgment’ ”, Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)), and the dismissal is ordinarily not appealable. See Ordower v. Feldman, 826 F.2d 1569, 1572 (7th Cir.1987) (“If a district court’s dismissal leaves a plaintiff free to file an amended complaint, the dismissal is not considered a final appealable order.”) (citing cases). However, there is an important exception to that general rule: “if the plaintiff cannot cure the defect that led to dismissal or elects to stand on the dismissed complaint ... the order of dismissal is final and ap-pealable.” Welch v. Folsom, 925 F.2d 666, 668 (3d Cir.1991) (citing cases); see also Ordower, 826 F.2d at 1572 (same); McCalden v. California Library Ass’n, 955 F.2d 1214, 1224 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 2306, 119 L.Ed.2d 227 (1992). (“[Ajppellant is not required to amend in order to preserve his right to appeal. When one is granted leave to amend a pleading, she may elect to stand on her pleading and appeal, if the other requirements for a final, appealable judgment are satisfied.”).

Alternatively, a dismissal without prejudice may be intended to end the litigation in the court involved but not to act as an adjudication on the merits or to bar the filing of a similar action in another court. Such a dismissal would be a “final” disposition and hence appealable. See Production & Maintenance Employees Local 504 v. Roadmaster Corp., 954 F.2d 1397, 1402 (7th Cir.1992) (citing cases); Ordower, 826 F.2d at 1572. The fact that the plaintiff could refile the action in another (state or federal) court — or in the same court in a new action — is irrelevant to the finality inquiry. See In Re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1129 (7th Cir.1988) (noting that dismissal “is appeal-able even if it is ancillary to a proceeding in another forum — even if it kicks off the [1054]*1054proceeding in the other forum”); see also Disher v. Information Resources, Inc., 873 F.2d 136, 139 (7th Cir.1989) (“The situation is different where, as in this case, the dismissal without prejudice winds up the litigation in the federal court system. True, the litigation continues in the state courts. But an order that ends litigation in one dispute:resolution system is final and appealable even though it kicks off litigation in another.’’) (citing cases).

The initial question, then, is whether the district court’s “dismissal without prejudice” of defendants Catsaros and Buttram was intended to end the litigation against them in the present action or whether the district court intended to permit McGuckin to amend his complaint in that action prior to dismissal; In resolving this inquiry, although “ ‘the trial judge’s characterization of his own action cannot control the classification of the action,’ ” United States v. Scott, 437 U.S. 82, 96, 98 S.Ct. 2187, 2196, 57 L.Ed.2d 65 (1978) (quoting United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (opinion of Harlan, J.)), the proper focus is on what effect the district court intended its order to have. See Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514-15 (9th Cir.1987); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984). We must “focus on the effect of the ruling rather than the label placed on it.” United States v. Lee, 786 F.2d 951, 955 (9th Cir.1986).

In the.

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974 F.2d 1050, 92 Cal. Daily Op. Serv. 7224, 23 Fed. R. Serv. 3d 922, 92 Daily Journal DAR 11690, 1992 U.S. App. LEXIS 19402, 1992 WL 201087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-c-mcguckin-v-dr-smith-john-c-medlen-dr-ca9-1992.