Unpublished Disposition, 935 F.2d 273 (9th Cir. 1989)

MEMORANDUM^** 

Jared Shafer on behalf of the estate of Brian Phillip Adams appeals the district court's order dismissing his second amended complaint brought under 42 U.S.C. § 1983 alleging that defendants deprived Adams of medical care while he was incarcerated in the Nevada state prisons in violation of the Eighth Amendment.

BACKGROUND

Adams was incarcerated in Nevada state prisons from 1985 until his death on February 11, 1989. On August 22, 1986 Adams was placed in a maximum security facility, whereupon he complained of severe abdominal pains and requested to see a nurse or doctor. Instead he was examined by an inmate medical technician. No additional medical treatment was given to Adams and no further medical review was scheduled despite repeated requests from him. Approximately one week later Adams was examined by a kidney specialist. Tests conducted by the specialist revealed that Adams' kidneys were 90 percent inactive. Adams was therefore taken to University Medical Center where his kidneys were removed. He lived in the prison system until his death at age thirty-six on February 11, 1989.

Adams filed a pro se complaint in 1986. Counsel was appointed in 1987. Adams died in 1989. On June 20, 1989, counsel stipulated for an extension of time to file an amended complaint which was filed on July 6, 1989. Defendants filed a motion to dismiss on July 14, 1989. The parties stipulated to allow an amended complaint which was filed on August 11, 1989. Defendants filed a motion to dismiss the second amended complaint. The motion was granted and judgment ordering that the second amended complaint be dismissed was entered on December 6, 1986. Plaintiff appeals.

ANALYSIS

An order that merely dismisses a complaint but does not expressly dismiss the action is not final and appealable under 28 U.S.C. § 1291 because the complaint is still open to amendment. Unless special circumstances indicate that the court below determined that the complaint could not be saved by amendment, the order is not appealable. Hurst v. California, 451 F.2d 350, 351 (9th Cir. 1971).

As to the state of Nevada, we can assume that the district court's dismissal was final. Under the eleventh amendment the state is immune from suit for private damages in federal court. Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988), citing Quern v. Jordan, 440 U.S. 332 (1979). Such a defect in the pleading cannot be cured by amendment.

As to the remaining defendants, the district court dismissed the complaint because Adams did not specifically allege how the individual officials participated in the complained of actions. The district court did not state that such a defect could not be cured by amendment. Since we find no "special circumstances" which indicate that the court below determined that the complaint could not be saved by amendment, the order is not appealable and the appeal is dismissed for lack of jurisdiction.