Unpublished Disposition, 930 F.2d 28 (9th Cir. 1989)

MEMORANDUM^** 

Domingo Martinez Morales appeals pro se from the district court's dismissal of his complaint against several officers of the Federal Correctional Institution Safford, Arizona. The district court held that it lacked jurisdiction because Morales had pending before this court appeals from the dismissal of two prior actions involving the same incident and claims.

Morales contends that the district court erred in dismissing his third action for lack of jurisdiction.

On June 9, 1989, we affirmed the district court's dismissal of Morales' first action in an unpublished memorandum, No. 87-2833. In a separate unpublished memorandum, No. 87-2701, we reversed the dismissal of his second action and remanded for further proceedings. We held that the district court improperly concluded that his second action, an assault claim, should have been joined with his first action for property loss. Accordingly, the facts that motivated the district court to dismiss this action, i.e. the pendency of the appeals from the dismissal of the first two complaints, no longer exist. Thus, the question whether the district court improperly concluded that it lacked jurisdiction pending the resolution of the appeals has been mooted by subsequent events.

Where the issue raised on appeal becomes moot because of facts that occur after the filing of the notice of appeal, we must follow the procedure set forth in United States v. Munsingwear, 340 U.S. 36 (1950). Accordingly, we are required to dismiss the appeal and vacate the district court's order because the issues raised have become moot. Fultz v. Rose, 833 F.2d 1380 (9th Cir. 1987); IBTCWHA, Local Union No. 2702 v. Western Air Lines Inc., 854 F.2d 1178 (9th Cir. 1988).

We cannot determine from the record before us whether Morales' third complaint raises issues identical to those presented in his second complaint. We note, however, that dismissal of a matter "is appropriate when the entire case has become moot but ... is inappropriate when only the issues raised on appeal have been resolved." Crowell v. Mader, 444 U.S. 505, 506 (1980).

Accordingly, this appeal is DISMISSED. The matter is REMANDED with directions to vacate the order of dismissal of the action "without prejudice to such further proceedings in the district court as may be appropriate." Id.