James Haskin et al., Appellants, v. Henry R. Morton, Etc., et al., Appellees, 456 F.2d 1071 (9th Cir. 1972)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 456 F.2d 1071 (9th Cir. 1972) Feb. 17, 1972. Rehearing Denied March 10, 1972

Burton Marks, of Marks, Sherman & Schwartz, Beverly Hills, Cal., for appellants.

Evelle J. Younger, Atty. Gen., Arnold O. Overoye, Daniel J. Kremer, Deputy Attys. Gen., Sacramento, Cal., Sahdell, Hill & Young, McCormick, Barstow, Sheppard, Coyle & Best, Parichan, Krebs, Renberg & Eldridge; Robert M. Wash, County Counsel for Fresno City, Fresno, Cal., for appellees.

Before ELY, WRIGHT and CHOY, Circuit Judges.


This appeal is from the District Court's dismissal of a complaint. In the complaint the appellants generally alleged that certain material had been seized from their place of business and that they had been unlawfully subjected to state prosecution upon the charge that the seized material was obscene. In their complaint they prayed for damages, an injunction against the state court criminal proceedings, and a declaratory judgment that certain California Penal Code provisions are unconstitutional. After certain preliminary proceedings, the District Court dismissed the complaint upon its finding that the same failed to state a claim upon which it might grant relief. In dismissing the complaint, however, the District Court at the same time granted the plaintiffs leave to amend their complaint and prescribed a period of sixty days within which they might do so. No amendment was presented, and the appeal followed.

Ordinarily, an appeal may not be taken from an Order dismissing a complaint only, rather than the action. Jackson v. Nelson, 405 F.2d 872 (9th Cir. 1968). It is especially important that this rule be applied when one whose complaint is dismissed is granted leave to file an amended complaint. Epton v. Hogan, 355 F.2d 203 (2d Cir. 1966).

We recognize that there are unusual cases in which an appeal has been allowed from an Order dismissing a complaint. See e. g., Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962). In the circumstances of the instant case, however, we see no reason to depart from the ordinary principle applicable to the appealability, vel non, of an Order dismissing a complaint but allowing for the amendment thereof. Accordingly, the appeal herein is