Unpublished Disposition, 921 F.2d 279 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 279 (9th Cir. 1990)

Donald N. GEORGE, Plaintiff-Appellant,v.STATE OF NEVADA, et al., Defendants-Appellees.

No. 88-1615.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 18, 1990.* Decided Dec. 21, 1990.

Before GOODWIN, Chief Judge, and SCHROEDER and BRUNETTI, Circuit Judges.


Donald N. George, a Nevada state prisoner, appeals pro se the district court's order dismissing his civil rights complaint without prejudice and without service on the defendants under 28 U.S.C. § 1915(d). We dismiss this appeal for lack of jurisdiction.

George's complaint initially was referred to a U.S. Magistrate, who filed a report that explained the complaint's deficiencies and recommended dismissing the complaint without prejudice and with leave to amend. Instead of filing an amended complaint, however, George filed objections to the magistrate's report. The district court overruled these objections, and entered an order adopting the magistrate's recommendation and dismissing the complaint without prejudice for failure to allege an arguable claim of constitutional dimension.

Generally, an order dismissing a complaint but not dismissing the action is not appealable under 28 U.S.C. § 1291 unless circumstances make it clear that the district court concluded that the action could not be saved by amendment. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984). Here, the district court's order dismissing the complaint adopted the magistrate's report, which notified George of the complaint's deficiencies and specifically granted him leave to file an amended complaint. Moreover, the district court's judgment dismissed the complaint without prejudice. Accordingly, we do not have jurisdiction to hear this appeal under 28 U.S.C. § 1291 because the district court did not issue a final, appealable order. See Hoohuli, 741 F.2d at 1171 n. 1.



The panel unanimously finds this case suitable for disposition 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