Smith v. Serna

367 F.2d 324

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 18, 1966
• Docket: 8776
• Status: Published

Opinion

367 F.2d 324

Irvin Lee SMITH, Appellant,
v.
Mr. Dave SERNA, District Attorney, Mr. Shelly, Former Sheriff of Grant County, Mr. Lucero, the arresting officer, Mr. K. Myers, Former Under-Sheriff, Mr. Shelly, Former Deputy Sheriff, Appellees.

No. 8776.

United States Court of Appeals Tenth Circuit.

October 18, 1966.

Irvin Lee Smith, pro se.

Boston E. Witt, Atty. Gen., Santa Fe, N. M., and L. D. Harris, Special Asst. Atty. Gen., Albuquerque, N. M., on brief for appellees.

Before PICKETT and SETH, Circuit Judges, and CHRISTENSEN, District Judge.

PER CURIAM.

Smith brought this civil action against several New Mexico law enforcement officials, alleging damages arising out of false arrest and imprisonment. The complaint was dismissed for failure to state a claim upon which relief could be granted. Smith thereupon appealed.

The appeal clearly must be dismissed for lack of a final judgment. It was not the action, but merely the complaint which was dismissed. In Garrison v. Lacey, 10 Cir., 362 F.2d 798, 799, this court stated:

"The hazards which beset a layman when he seeks to represent himself are illustrated by this appeal. The record contains no final judgment. The order sought to be reviewed dismissed the complaint but did not dismiss the action. Hence it is nonappealable. See Midwestern Developments, Inc. v. City of Tulsa, Oklahoma, 10 Cir., 319 F.2d 53, certiorari denied 379 U.S. 989, 85 S.Ct. 702, 13 L.Ed.2d 610. * * *"

See, also, Martinez v. Flores, 9 Cir., 299 F.2d 888, and cases therein cited.

The appeal is dismissed.