Harry Neil Kelly, Jr., Plaintiff-appellant, v. Susan Humphrey-barnett, Commissioner of Dept of Corr; Frankj. Prewitt, Dep Commissioner, Dept of Corr; William Parker,administrator, Ak Dept of Corr; Allen Cooper, Dep Regiondir, Ak Dept of Corr; Charles Moses, South Central Reg Dir,ak Dept of Corr; Robert Spinder, Chief of Classification,ak Dept of Corr; Richard Collum, Board of Parole, State Ofak; Jana Varrati; Phillip Briggs; Ron Epperson; Charlesshafer; Sergeant Dray; Sergeant Edwards; Sergeant Fields;sergeant Gaffney; Sergeant Gore; Sergeant Jenkins;sergeant Robinson; Sergeant Rogers; Sergeant Rosas;sergeant Williams; Sergeant Goldstein; Officer Green;officer Shields; Officer Bellvue; Officer Baldwin;officer Latuska; Vina Lewis; Joseph Pendergrass; Chiara,retired Superintendent; Lloyd Boldt; Art Schmidt; Tommartin; Dennis Vincent; Vincent Realty Company, Wasilla,alaska; Robert Stocking; Bonnie Campbell; Mary Annchaney; Officer Stanfield; Alaska Dept of Corrections,agency of the State of Alaska; Alaska Department of Law,agency of the State of Alaska; Erinest Griffith; Charleycarter; Munson, Cpl, Ak State Trooper Judicial Ser. Offcr.;cummins, Judicial Ser. Offcr.; Edward Hoodk, Parole &probation Offcr.; Frank Coletta, Police Officer, Defendants-appellees,andjohn Bodick, Office of Special Prosecutions & Appeals, Stateof Alaska; Jeffrey Cole; Michael Dindinger; Ann Blodgett;vern Rupwright; Robert Merry; Public Advocacy Office,agency of the State of Alaska; Bryant Mcgee; Rex Butler;bill Hendricks; Patty Hurt, Defendants, 116 F.3d 1486 (9th Cir. 1997)

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US Court of Appeals for the Ninth Circuit - 116 F.3d 1486 (9th Cir. 1997) Argued and Submitted June 17, 1997. **Decided June 19, 1997

Appeal from the United States District Court. for the District of Alaska. John W. Sedwick, District Judge, Presiding

Before: GOODWIN, SCHROEDER, and TASHIMA, Circuit Judges.


Former Alaskan state prisoner Harry Neil Kelly, Jr., appeals the district court's order denying his Fed. R. Civ. P. 60(b) motion to set aside the court's dismissal of numerous defendants in Kelly' § 42 U.S.C. § 1983 action. The district court denied Kelly's Rule 60(b) motion while his appeal from the court's underlying judgment was pending in this court.1  We have jurisdiction pursuant to 28 U.S.C. § 1291, see Thomas, Head & Greisen Employees Trust v. Buster, 95 F.3d 1449, 1460 n. 19 (9th Cir. 1996), cert. denied, 117 S. Ct. 1247 (1997), and we review de novo, see Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir. 1992) (en banc).

Because this court denied Kelly's motion for a limited remand to the district court, the district court lacked jurisdiction to address Kelly's Rule 60(b) motion in the underlying appeal. See Gould v. Mutual Life Ins. Co., 790 F.2d 769, 772 (9th Cir. 1986); see also Carriger, 971 F.2d at 332. Accordingly, we remand with instructions to deny Kelly's Rule 60(b) motion for lack of jurisdiction.

Each party to bear its own costs and fees on appeal.



The panel unanimously finds this case suitable for decision without oral argument. See 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


In an unpublished memorandum disposition, this court affirmed the district court's judgment. See Kelly v. Humphrey-Barnett, No. 95-35691, 1996 WL 632800, at * 1 (9th Cir. Oct. 29, 1996)