Charles D. Dearing, Jr., Plaintiff-appellant, v. J.d. Swinson, Warden, et al., Defendants-appellees, 990 F.2d 1256 (9th Cir. 1993)

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US Court of Appeals for the Ninth Circuit - 990 F.2d 1256 (9th Cir. 1993) Submitted March 23, 1993. *Decided April 6, 1993

Before WALLACE, Chief Judge, and FARRIS and BRUNETTI, Circuit Judges.

MEMORANDUM** 

Charles D. Dearing, Jr., a federal prisoner, appeals pro se the district court's dismissal, with leave to amend, of his civil rights complaint. We lack jurisdiction to entertain the merits of Dearing's appeal, and we dismiss the appeal.

A district court order dismissing a complaint with leave to amend is not a final and appealable decision. Proud v. United States, 704 F.2d 1099, 1100 (9th Cir. 1983) (per curiam). Whether the plaintiff amends the complaint is immaterial in determining the appealability of the order. Id.

Here, Dearing filed a complaint alleging that prison officials violated his first amendment rights by withholding certain scientific books and magazines. The district court dismissed Dearing's complaint and gave Dearing thirty days in which to file an amended complaint. Dearing appealed the district court order.

The district court's order is not appealable. See Proud, 704 F.2d at 1100. We therefore dismiss Dearing's appeal.

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 9th Cir.R. 36-3

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