D. C. Dockery, Appellant, v. Albert Dockery and Sarah Calhoun, Appellees, 437 F.2d 898 (9th Cir. 1971)

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US Court of Appeals for the Ninth Circuit - 437 F.2d 898 (9th Cir. 1971) January 15, 1971

D. C. Dockery, in pro per.

Albert Dockery, in pro per; Sarah Calhoun, in pro per.

Before HAMLEY, MERRILL and BROWNING Circuit Judges.


D. C. Dockery, a California State prisoner, appeals from an order dismissing his complaint pursuant to Rule 12, Federal Rules of Civil Procedure. The district court dismissed the complaint because of plaintiff's failure "to elaborate the facts which underlie his claim" in this civil rights action against plaintiff's brother and sister.

A dismissal of a complaint, without dismissal of the action, is not a "final order" under 28 U.S.C. § 1291 because the complaint is still open to amendment. Since we find no "special circumstances" here which indicate that the court below determined that the complaint could not be saved by amendment, the order appealed from is not an appealable order. Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir. 1968).

The appeal is accordingly dismissed for lack of jurisdiction. Plaintiff may move in the district court for leave to file an amended complaint. Thereafter, further proceedings should be governed by the procedure outlined in Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970), and cases cited.