John Ronald Bertram, Plaintiff-appellant, v. Eddie Ylst, et al., Defendants-appellees, 942 F.2d 790 (9th Cir. 1991)

MEMORANDUM^** 

John Ronald Bertram, a California state prisoner, appeals pro se from the district court's dismissal of his 42 U.S.C. § 1983 complaint pursuant to Fed. R. Civ. P. 12(b) (6) with leave to file an amended complaint. We dismiss this appeal for lack of jurisdiction.

Bertram's complaint was referred to a magistrate, who filed a report that explained the complaint's deficiencies, recommended that the government's motion to dismiss be granted, and recommended that Bertram be given thirty days to file an amended complaint. Bertram filed timely objections to the magistrate's recommendations and an amended complaint. The district court then overruled the objections, adopted the magistrate's findings and recommendations in full, and granted the defendants' motion to dismiss without acknowledging that Bertram had filed an amended complaint. On October 10, 1990, Bertram filed his notice of appeal from the district court's order of September 28.

The government argues, and we agree, that because the district court dismissed the complaint with leave to amend, there is no final, appealable order. An order dismissing a complaint is not a final, appealable order unless the district court necessarily determined that the complaint could not be saved by amendment. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984). Here, the district court's order dismissing the complaint adopted in full the magistrate's report, which notified Bertram of the deficiencies of the complaint and recommended that he be given thirty days to file an amended complaint. Bertram timely filed an amended complaint, which is still pending in the district court. Accordingly, we do not have jurisdiction to hear this appeal.

DISMISSED.