Unpublished Disposition, 909 F.2d 1488 (9th Cir. 1990)
Annotate this CaseJames CELLO-WHITNEY, Jr., Plaintiff-Appellant,v.Gary MCCRACKEN; M. John Stankovic; Albert Bowman; RobertPhillips, Defendants-Appellees.
No. 90-35027.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 6, 1990.* Decided Aug. 8, 1990.
Appeal from the United States District Court for the Western District of Washington; District Judge Robert J. Bryan, Presiding.
W.D. Wash.
DISMISSED.
Before WRIGHT, BEEZER and TROTT, Circuit Judges.
MEMORANDUM**
While incarcerated in Washington state, Cello-Whitney filed a civil rights action seeking damages and injunctive relief against several corrections personnel. He moved for summary judgment and the defendants moved to stay the proceedings because Cello-Whitney had been transferred to an Arizona prison. The district court denied summary judgment and granted the stay. Cello-Whitney appealed pro se.
We dismiss for lack of jurisdiction.
An order denying summary judgment is not appealable under 28 U.S.C. § 1291. Alexander v. Pacific Maritime Assoc., 332 F.2d 266, 268 (9th Cir.), cert. denied, 379 U.S. 882 (1964); see also EEOC v. Ratliff, Nos. 89-15017, 89-15184, slip op. 6293, 6303 (9th Cir. June 21, 1990) ("We cannot consider what in effect was a denial of a grant of summary judgment.").
If a stay does not put the plaintiff "effectively out of court," it is not a final decision for purposes of 28 U.S.C. § 1291. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n. 11 (1983). The district court granted the stay until Cello-Whitney returned to Washington.1 Because he was not "effectively out of court," we do not have jurisdiction.
DISMISSED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
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
He is now in the Washington Corrections Center in Shelton, Washington and has filed two motions in district court concerning his civil rights complaint
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