Unpublished Disposition, 917 F.2d 28 (9th Cir. 1990)
Annotate this CaseTimothy Jon ROBLES, Plaintiff-Appellant,v.David G. PARRAGUIRRE and Jane G. McKenna, Defendants-Appellees.
No. 90-15019.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 23, 1990* Decided Oct. 25, 1990.
Before HUG, NELSON and LEAVY, Circuit Judges.
MEMORANDUM**
Timothy John Robles, a Nevada state prisoner, appeals pro se the district court's order dismissing his 42 U.S.C. § 1983 complaint without prejudice as frivolous under 28 U.S.C. § 1915(d).
Pursuant to 28 U.S.C. § 1291 this court has jurisdiction over appeals from all "final orders" of the district court. Ordinarily an order dismissing the complaint rather than dismissing the action is not appealable under section 1291 unless it is clear that the court concluded the action could not be saved by amendment or if it appears that the district court intended the dismissal to dispose of the entire action. See Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984) (citations omitted). We raise sua sponte the question of our jurisdiction to hear this appeal. See Abernathy v. Southern California Edison, 885 F.2d 525, 527 (9th Cir. 1989).
It is unclear from the language of the district court's order whether the district court concluded that Robles could not save his action by amendment.1 Nor is it clear that the district court intended the dismissal to dispose of the action. Therefore, we do not have jurisdiction to hear this appeal under section 1291 because the district court did not issue a final appealable order. See Hoohuli, 741 F.2d at 1171 n. 1. Accordingly, we dismiss this appeal for lack of jurisdiction.
DISMISSED.
Although Robles has requested oral argument, the panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 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 9th Cir.R. 36-3
The court stated that a dismissal on the ground of frivolity is not a judgment on the merits, and that a plaintiff could reassert his claim in federal court if the deficiencies of the complaint were corrected. The district court's order, however, contains no conclusions as to whether Robles could cure the deficiencies of his complaint by amendment
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