Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1015 (9th Cir. 1991)

Ervin Charles ST. AMAND, Plaintiff-Appellant,v.Ward B. LEDBETTER, Sgt., individually and officially, MickiBlomdal, individually and officially, Joe Evers,individually and officially, Defendants-Appellees.

No. 89-16481.

United States Court of Appeals, Ninth Circuit.

Submitted May 13, 1991.* Decided May 23, 1991.

Before GOODWIN, SKOPIL and CANBY, Circuit Judges.


Ervin Charles St. Amand appeals from an order granting summary judgment against him on his first three claims and dismissing his remaining claims without prejudice against three county employees he sued in this 42 U.S.C. § 1983 action for damages and injunctive relief. We dismiss the appeal for want of jurisdiction because there is no final appealable order. 28 U.S.C. § 1291.

Acting as his own attorney, St. Amand first sued the county sheriff, the jail administrator, the jail library administrator and a librarian. He claimed that while incarcerated at the Clark County (Nevada) Detention Center, he was unlawfully denied (1) medical attention; (2) access to law books he needed for his legal research, and (3) his mail. This first action was ultimately designated CV-S-87-568-PMP.

St. Amand later filed a second suit naming three additional county employees as defendants, and asserted a new claim under section 1983. This second action was designated CV-S-88-0700-LDG. The court ordered the two cases consolidated.

Following discovery, the three defendants named in the second action moved for summary judgment on the first three counts and for an order dismissing without prejudice the remaining claims as duplicative of the claims brought in the first action. The court granted the requested partial summary judgment and, in the same order, dismissed without prejudice the remaining claims against the three defendants. Had the district court not consolidated the two cases, the court's order would have been a final judgment in the second action. There remain, however, in the consolidated action, claims pending against the first four defendants. Since the district court did not dispose of all claims against all parties, there is no "final order" within the meaning of 28 U.S.C. § 1291. See Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1402 (9th Cir. 1988) ("If a district court's order does not dispose of all claims against all parties, there is no 'final order' within the meaning of 28 U.S.C. § 1291.").

Absent certification by the district court pursuant to Federal Rule of Civil Procedure 54(b), the court's partial grant of summary judgment in favor of the second set of defendants may not be appealed. Moreover, since some of the claims were dismissed without prejudice, St. Amand may be able to amend his complaint to rehabilitate those claims. Because there is no final, appealable order for us to review, we must dismiss for want of appellate jurisdiction. See Proud v. United States, 704 F.2d 1099, 1100 (9th Cir. 1983).



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 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 Ninth Circuit Rule 36-3