Raymond Ludwig Frost, Plaintiff-appellant, v. Frank T. Galati, Judge; Robert Shutts, Prosecutingattorney; Nancy Hinchcliff, Attorney; James R.hart, Attorney, et al., Defendants-appellees, 976 F.2d 736 (9th Cir. 1992)

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U.S. Court of Appeals for the Ninth Circuit - 976 F.2d 736 (9th Cir. 1992) Submitted Sept. 17, 1992. *Decided Sept. 21, 1992

Before SCHROEDER, WILLIAM A. NORRIS and BRUNETTI, Circuit Judges

MEMORANDUM** 

Appellant Frost appeals the stay of his civil rights action pending exhaustion of his habeas corpus remedies and the dismissal of several, but not all, defendants in the action. Frost's action charges that numerous defendants violated his civil rights by conspiring in his criminal proceedings to plant, tamper, and withhold evidence; tamper with witnesses; obstruct justice; and alter police reports and trial transcripts.

Although the stay of his action is not a final judgment, we consider the district court's order under the collateral order exception to 28 U.S.C. § 1291. Marchetti v. Bitterolf, No. 91-55095, slip op. 7847, 7854 (9th Cir. July 2, 1992). We find that the district court did not abuse its discretion in ordering a stay because "to determine the truth of [Frost's] allegations, the district court would be required to determine whether the underlying conviction was valid." Id. at 7856. Under these circumstances, the court must order a stay pending exhaustion of a prisoner's habeas corpus remedies. Id.

Under 28 U.S.C. § 1291 we do not have jurisdiction to consider the district court's dismissal of some, but not all, of the defendants in Frost's action. Fed. R. Civ. P. 54(b); Feist v. McGee, 433 F.2d 1015, 1016 (9th Cir. 1970). The action continues, no final judgment was entered, and the court did not certify the case under Rule 54(b). The dismissal of some of the defendants does not fall within the collateral order exception because the ruling is reviewable on appeal from a final judgment. Marchetti, slip op. at 7852 ("To come within collateral order exception.... [ruling] 'must be effectively unreviewable on appeal.' ") (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).

The district court's stay order is AFFIRMED. Frost's remaining contentions on appeal are DISMISSED.

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3