Unpublished Disposition, 902 F.2d 1579 (9th Cir. 1988)

MEMORANDUM^** 

Franklin P. Noheart appeals pro se the district court's order dismissing his 42 U.S.C. § 1983 complaint against state parole board members. The court dismissed with prejudice Noheart's claim for damages because it found the defendants to be immune from such claims. And, in the same order, the court construed Noheart's request for declaratory and injunctive relief as a 28 U.S.C. § 2254 petition for a writ of habeas corpus. The court further ordered that Noheart file an amended petition on forms to be provided by the court clerk. Rather than file an amended petition, however, Noheart brought this appeal.¹ 

This court has an independent duty to consider whether the order from which a party appeals is final or otherwise appealable. California v. Harvier, 700 F.2d 1217, 1218 (9th Cir.), cert. denied, 464 U.S. 820 (1983). Usually an order dismissing only a complaint, rather than the underlying action, is not a final order. Id. Only where the district court has found that the complaint could not be saved by amendment will the dismissal of a complaint be considered appealable under 28 U.S.C. § 1291. Id. Although the district court dismissed Noheart's damages claim with prejudice, it anticipated that Noheart would file an amended habeas petition.²  Thus, the court did not find the entire complaint to be fatally defective. Nor did the court otherwise indicate that it intended to dispose of the action in its entirety. Cf. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987) (order appealable where district court intended that it dispose of action). Therefore, the dismissal of the complaint as a whole is not appealable. Harvier, 700 F.2d at 1219.

Nor is the dismissal of the damages claim appealable as a collateral order under the doctrine set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Thompson v. Betts, 754 F.2d 1243, 1246 (5th Cir. 1985) (dismissal on ground of absolute immunity not a collateral order). Therefore, without the district court's certification pursuant to Fed. R. Civ. P. 54(b), this court lacks jurisdiction to hear Noheart's appeal. Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir. 1985) (Rule 54(b) certification is jurisdictional where final judgment entered as to one or more but fewer than all of the claims or parties); Thompson, 754 F.2d at 1246; see also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981) (finality requirement of 28 U.S.C. § 1291 is jurisdictional). Because the district court's dismissal order of October 26, 1988 is not a final decision within the meaning of 28 U.S.C. § 1291, this appeal is

DISMISSED.