Unpublished Disposition, 935 F.2d 275 (9th Cir. 1990)

MEMORANDUM^** 

Harry Seagrave, a California state prisoner, appeals pro se the magistrate's dismissal of his 42 U.S.C. § 1983 complaint. We dismiss the appeal for lack of a final appealable order.

In October 1990, Seagrave filed a first amended complaint in this action alleging denial of access to the courts due to several mailroom policies at the prison. On October 30, 1990, the magistrate found that Seagrave failed to allege any actual injury, and dismissed the complaint with 30 days leave to amend. In addition, the magistrate also vacated a previous order directing service of Seagrave's original complaint on the defendants.

On November 8, 1990, Seagrave filed a motion to vacate pursuant to Fed. R. Civ. P. 59(e). The district court denied the motion for reconsideration because the magistrate's ruling, pursuant to Local Rule 304(f), was not "clearly erroneous or contrary to law." Seagrave filed his notice of appeal on November 20, 1990, attempting to appeal the magistrate's October 30th order and the district court's November 8th order.

"Ordinarily an order dismissing a complaint but not dismissing the action is not appealable under section 1291" as a final judgment. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984). An exception to this rule applies where " 'it appears that the district court intended the dismissal to dispose of the action.' " Gerritsen v. de la Madrid Hurtado, 819 F.2d 1151, 1154 (9th Cir. 1987) (quoting Hoohuli, 741 F.2d at 1171 n. 1). Because neither order issued by the district court is a final judgment dismissing the action, we do not have jurisdiction over Seagrave's appeal under 28 U.S.C. § 1291.

DISMISSED.