Unpublished Disposition, 855 F.2d 860 (9th Cir. 1980)

No. 86-2779.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and BEEZER, Circuit Judges, and COUGHENOUR,^**  District Judge.

MEMORANDUM^*** 

Darrow appeals the dismissal of his Sec. 1983 claim as frivolous under 28 U.S.C. § 1915(d). We dismiss the appeal for lack of jurisdiction.

In his complaint Darrow claimed:

"On October 18, 1980 I was stabbed repeatedly as result of Defendants negligence of Folsom Prison." On appeal and in his objections to the magistrate's findings he has framed his claim as an intentional tort. Darrow claims the use of the word "negligence" was unintended and "that Defendants did indeed intend 'loss or injury to life, liberty or property' " (Darrow's brief on appeal p. 2).

The district court, relying on the magistrate's recommendations, dismissed the complaint as frivolous under 28 U.S.C. § 1915(d), before service on the defendants. The magistrate relied on Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984). The district court adopted the magistrate's findings and conclusions "in full" and dismissed the plaintiff's complaint.

Our circuit has held that dismissal of the complaint is not a final order unless it is patently clear that the action cannot be saved by amendment. Dismissal of the action is required for finality. 9 Moore's Federal Practice (2nd ed.) 152; California v. Harvier, 700 F.2d 1217, 1219 (1983). Although the complaint was dismissed as frivolous because it used the word "negligence" instead of "intentional act," we cannot say that "no possible amendment could save the complaint" as required by Harvier. Id. Accordingly, we DISMISS the appeal for lack of jurisdiction. Appellant is not foreclosed from filing an amended complaint.

Petitioner's "Request to Present New Evidence and Proposal for Settlement" is dismissed as moot.