Roy Douglas Hurst v. State of California

451 F.2d 350

Roy Douglas HURST et al., Plaintiffs-Appellants,
v.
STATE OF CALIFORNIA et al., Defendant-Appellee.

No. 71-1738.

United States Court of Appeals,
Ninth Circuit.

Nov. 16, 1971.
Rehearing Denied Dec. 10, 1971.

Roy D. Hurst, Lloyd Daniels and Richard E. Deeth, in pro. per.

Evelle J. Younger, Cal. Atty. Gen., William E. James, Asst. Atty. Gen., Russell Iungerich, Jack K. Weber, Deputy Attys. Gen., Los Angeles, Cal., for defendant-appellee.

Before HAMLEY, BROWNING and CARTER, Circuit Judges.

PER CURIAM:

1

Plaintiffs, inmates at California Men's Colony, appeal from an "Order Dismissing Complaint" that was based upon their failure to allege the names of any defendants in the caption of the complaint other than the "State of California, Et Al." The State of California was found to be an improper defendant under the Civil Rights Act, 42 U.S.C. Sec. 1983.

2

A dismissal of a complaint without dismissal of the action is not a "final order" under 28 U.S.C. Sec. 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 is not appealable. Jackson v. Nelson (9 Cir. 1968), 405 F.2d 872, 873. See also Rule 21, Federal Rules of Civil Procedure.

3

The appeal is dismissed for lack of jurisdiction.