Ahmed Michael Pinkston, Plaintiff-appellant, v. L. Garcia, et al., Defendants-appellees, 29 F.3d 633 (9th Cir. 1994)

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U.S. Court of Appeals for the Ninth Circuit - 29 F.3d 633 (9th Cir. 1994) Submitted June 21, 1994. *Decided June 30, 1994

Before: TANG, PREGERSON, and T.G. NELSON, Circuit Judges.


California state prisoner Ahmed M. Pinkston appeals pro se the district court's order dismissing six out of nine defendants he named in his 42 U.S.C. § 1983 action pursuant to Fed. R. Civ. P. 12(b) (6). Pinkston contends that defendants, who are employees of the Corcoran prison facility, violated his Eighth and Fourteenth Amendment rights by forcing him to endure unconstitutional living conditions. We lack jurisdiction to consider this appeal.

Pursuant to 28 U.S.C. § 1291, we have jurisdiction over appeals from final orders of the district court. A district court order dismissing an action as to only some of the defendants is not a final order pursuant to Sec. 1291. Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d 548, 554 (9th Cir. 1986), cert. denied, 484 U.S. 822 (1987).

Here, on September 24, 1993 the district court dismissed six of the nine defendants who remained in Pinkston's action for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6).1  Because the order did not dismiss all the defendants, nor enter a judgment in compliance with Fed. R. Civ. P. 54(b), the order is not final and we therefore lack jurisdiction to consider Pinkston's appeal. See 28 U.S.C. § 1291; Fed. R. Civ. P. 54(b); Unioil, Inc., 809 F.2d at 554.



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


The district court dismissed defendants Holt, King, Scott, Lomanaco, Yamaguchi and Avila. Defendants Garcia, Kaszap and Vizard remain in this action


Because of our disposition in this case, appellant's March 28, 1994 motion for appointment of counsel is denied. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (A finding of exceptional circumstances to warrant the appointment of counsel requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved)