Thomas Gaule, for Himself and As Co-trustee and Beneficiaryof the Anne Marie Gaule Living Trust, Plaintiff-appellant, v. County of Clark, Nevada; the County of Clark Office Anddepartment of Guardians and Administration, Jaredshafer; Does 1-100 Inclusive,defendants-appellees, 139 F.3d 904 (9th Cir. 1998)

MEMORANDUM^* 

Thomas Gaule appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failing to file an opposition to defendants' motion to dismiss Gaule's amended complaint. The district court concluded that, by failing to file an opposition, Gaule had consented under the court's local rule to the granting of defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6). We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate and remand with instructions to dismiss for lack of jurisdiction.

Upon our independent review of the record, see MacKay v. Pfeil, 827 F.2d 540, 542 (9th Cir. 1987) (per curiam), we conclude that Gaule's § 1983 action constituted an impermissible collateral attack on a prior state court decision appointing defendant Shafer as the legal guardian of Gaule's mother, Anna Marie Gaule, and her estate. See Branson v. Nott, 62 F.3d 287, 291-92 (9th Cir. 1995); MacKay, 827 F.2d at 543-45. Accordingly, the district court lacked subject-matter jurisdiction to adjudicate Gaule's purported § 1983 action. See Branson, 62 F.3d at 291-92.

Because the district court dismissed Gaule's action on the merits, see Wages v. IRS, 915 F.2d 1230, 1234 (9th Cir. 1990), we must vacate the court's judgment and remand with instructions to enter judgment dismissing the action for lack of subject-matter jurisdiction. See Capitol Indus.--EMI v. Bennett, 681 F.2d 1107, 1118 (9th Cir. 1982); see also MacKay, 827 F.2d at 543, 545.

Each side to bear its own costs.

VACATED and REMANDED.