Unpublished Disposition, 931 F.2d 59 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 931 F.2d 59 (9th Cir. 1991)

Albert R. GARCIA, Jr., Plaintiff-Appellant,v.Brenda BURNS, Warden, et al., Defendants-Appellees.

No. 90-15375.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1991.* Decided April 23, 1991.

Before POOLE, D.W. NELSON and NOONAN, Circuit Judges.


Albert R. Garcia, Jr., a Nevada state prisoner, appeals pro se the district court's denial of his motion for a preliminary injunction and grant of partial summary judgment in favor of defendant prison officials in his 42 U.S.C. § 1983 action. In his complaint, Garcia alleged that he was placed in administrative segregation without due process. He also alleged that while in administrative segregation, he was served cold food, given insufficient toilet paper, and denied access to the courts, outdoor exercise, educational and rehabilitative programs, and religious ceremonies.

The district court denied Garcia's motion for a preliminary injunction, denied the prison officials' motion for summary judgment without prejudice as to Garcia's due process claim, and granted summary judgment in favor of the prison officials on all other claims, finding that Garcia had not presented any genuine issues of material fact to preclude summary judgment. The district court did not direct entry of final judgment under Fed. R. Civ. P. 54(b) on the claims as to which it granted summary judgment. Garcia's due process claim remains pending in the district court.

Absent an express judicial finding to the contrary, an order adjudicating fewer than all of the claims in a suit is not a final order for purposes of 28 U.S.C. § 1291. Fed. R. Civ. P. 54(b). The district court's order granting partial summary judgment thus is not appealable. See Cheng v. Commissioner, 878 F.2d 306, 309 (9th Cir. 1989). Accordingly, to the extent Garcia appeals the order granting partial summary judgment, this appeal is dismissed.

Garcia also appeals the district court's denial of his motion for a preliminary injunction. We have jurisdiction under 28 U.S.C. § 1292(a) (1), and we review for an abuse of discretion. Religious Technology Center, Church of Scientology Internat'l, Inc. v. Scott, 869 F.2d 1306, 1309 (9th Cir. 1989). Here, the district court denied Garcia's motion for a preliminary injunction because Garcia has been released from administrative segregation and is not longer subject to the challenged conditions. Given these circumstances, the district court did not abuse its discretion.

On appeal, the state argues that Garcia's appeal should be dismissed because his informal brief fails to meet the mandatory requirements of Fed. R. App. P. 28. Among other things, the state argues that Garcia should have submitted a table of contents, a table of cases, and an argument as to how his cited cases support his contentions. Nevertheless, pro se appellants are advised by the Ninth Circuit that they may file an informal brief instead of the standard brief required by the Federal and Circuit Rules. Moreover, Garcia answered the questions in the informal brief thoroughly and provided all information required of pro se appellants in his excerpts of record. The state's argument that Garcia's brief is deficient lacks merit.

DISMISSED in part and AFFIRMED in part.


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