Unpublished Disposition, 874 F.2d 815 (9th Cir. 1989)

MEMORANDUM

Baker, a Washington state prisoner proceeding pro se, appeals from the district court's sua sponte dismissal of his complaint for failure to state a claim. Baker sued the Washington State Department of Corrections and two of its employees, Packebush and Riveland, under 42 U.S.C. § 1983. Baker also appeals from the district court's denial of two subsequent motions. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343.

The district court dismissed Baker's complaint without prejudice on June 9, 1987. Rather than refile an amended complaint, Baker filed on July 1 motions for reconsideration and for an evidentiary hearing. The district judge denied both motions on July 29. Baker then filed a notice of appeal on August 24, 1987, attempting to appeal from both the June 9 dismissal and the July 29 denial of his motions.

Because neither the June 9 nor July 29 orders is a final judgment, we do not have jurisdiction over Baker's appeal under 28 U.S.C. § 1291. "Ordinarily an order dismissing a complaint but not dismissing the action is not appealable under section 1291" as a final judgment. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984) (Hoohuli) (emphasis added); see also Scott v. Eversole Mortuary, 522 F.2d 1110, 1112 (9th Cir. 1975). The district court's June 9 order dismissed Baker's complaint but not his action. Similarly, the district court's July 29 order denying Baker's motions for reconsideration and for an evidentiary hearing did not dismiss his action.

An exception to the above rule applies where " 'it appears that the district court intended the dismissal to dispose of the action.' " Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987), quoting Hoohuli, 741 F.2d 1171 n. 1. This case, however, does not fall under this exception. Although one of the district court's orders is not completely clear, on balance we conclude that the district court did not intend to dismiss Baker's entire action.

The June 9 order dismissing the complaint was based on Baker's failure "to allege facts from which this court can infer a denial of a constitutional right" and "to allege facts sufficient to invoke federal subject matter jurisdiction." There is reason demonstrated in the record why the deficiency could not be overcome by an amendment. The district court added, however, that " [a]s it does not appear the defect can be remedied by amending the complaint, the complaint and claims therein are DISMISSED WITHOUT PREJUDICE." Although this last statement could be read as expressing an intent to dismiss Baker's entire action, we decline to so read it given (1) the tentativeness expressed by the word "appear," (2) the fact that the complaint was dismissed without prejudice, (3) the remediability of the stated grounds for the dismissal (deficiency of factual allegations), see Hoohuli, 741 F.2d at 1171-72 n. 1, and (4) the fact that the order clearly dismissed the complaint but not the action.

This reading is supported by the court's July 29 order denying Baker's motions for reconsideration and for an evidentiary hearing. That order described various new claims alleged by Baker in his motion for reconsideration as being unsupported by sufficient factual allegations. As for Baker's due process claim, the court observed that Baker's motion for reconsideration failed to allege the existence of a liberty interest and even if it had, Baker "failed to set forth any factual allegations concerning what due process procedure was denied." Even if the July 29 order could be read as finally disposing of Baker's due process claim on legal grounds, it is clear that Baker's other new claims might be realleged with sufficient supporting facts to allow his action to continue. Until the district court has reached a final decision as to all the claims, see Balla v. Idaho State Board of Corrections, Nos. 87-3800 and 87-3959, slip op. 1685, 1690 (9th Cir. Mar. 3, 1989), citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978), there is no final judgment from which appeal lies.

APPEAL DISMISSED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.