Hoang Tran v. William Gore ( 2014 )

FILED
NOT FOR PUBLICATION AUG 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOANG MINH TRAN, No. 13-55993
Plaintiff - Appellant, D.C. No. 3:10-cv-02682-BTM-
BLM
v.
WILLIAM D. GORE; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted August 13, 2014**
Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.
Former California state prisoner Hoang Minh Tran appeals pro se from the
district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action
alleging various claims arising from his pre-trial detention. We dismiss the appeal
for lack of jurisdiction.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Tran seeks review of the district court’s order granting his motion For
voluntary dismissal without prejudice. However, under the final judgment rule, a
voluntary dismissal without prejudice under Federal Rule of Civil Procedure 41 is
not a final judgment from which Tran may appeal because it is “not adverse” to
his interests and he “is free to seek an adjudication of the same issue at another
time in the same or another forum.” Concha v. London, 62 F.3d 1493, 1506-07
(9th Cir. 1995); see also Romoland Sch. Dist. v. Inland Empire Energy Ctr., 548
F.3d 738, 747, 750 (9th Cir. 2008) (discussing when district court’s order is final
and appealable under the final judgment rule embodied in 28 U.S.C. § 1291).
Moreover, Tran’s appeal does not fall within any recognized exceptions to
the final judgment rule. See, e.g., Romoland, 548 F.3d at 750 (under limited
circumstances, appellate court may treat a dismissal without prejudice as one with
prejudice with the clear, consistent intent of the court and the parties); James v.
Price Stern Sloan, Inc., 283 F.3d 1064, 1066-70 (9th Cir. 2002) (under certain
limited circumstances, appellate court may review a judgment dismissing without
prejudice claims remaining after the district court enters an adverse partial
judgment against a party).
Because we dismiss this appeal for lack of jurisdiction, we do not address
Tran’s contentions regarding the merits of his claims; interlocutory orders denying
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his motions for appointment of counsel, for a competency hearing, and for
appointment of another inmate as “next friend” or guardian ad litem; and the
district court’s alleged failure to review all the evidence and other structural errors.
Tran’s motions to submit supplemental information and for judicial notice,
filed on September 30, November 15, and November 25, 2013, are granted.
DISMISSED.
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