Mark S. Nelson, Plaintiff-appellant, v. Don Helling; John S. Croswell Iii; James M. Rundlett;karen A. Gedney; Mellonese Harrison; Guy R.vega; Rumaldo Rodriguez; Jessie Walsh;james Stevens, Jr.,defendants-appellees, 73 F.3d 370 (9th Cir. 1995)

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US Court of Appeals for the Ninth Circuit - 73 F.3d 370 (9th Cir. 1995)

Submitted Dec. 19, 1995. Decided Dec. 27, 1995

Before: SNEED, TROTT, and HAWKINS, Circuit Judges.


Mark S. Nelson, a Nevada state prisoner, appeals pro se the district court's grant of summary judgment for defendants. We dismiss the appeal for lack of jurisdiction.

We have jurisdiction only over final orders of the district court. See 28 U.S.C. § 1291. Without certification pursuant to Fed. R. Civ. P. 54(b), orders dismissing some but not all of the parties are not final orders appealable under 28 U.S.C. § 1291. Fed. R. Civ. P. 54(b); Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981). "While the 'law of the case' doctrine prevents reconsideration of issues that have been decided by the court, the merits panel has an independent duty to examine jurisdictional questions." Hard v. Burlington N.R.R. Co., 870 F.2d 1454, 1458 (9th Cir. 1989) (citations omitted).

On March 9, 1994, the district court entered summary judgment in favor of all defendants. After noting that this judgment contained a clerical error because defendant Rodriguez was not a party to the motion for summary judgment, the district court granted defendant Rodriguez's motion to be joined as a party in the motion for summary judgment and then vacated the March 9, 1994 judgment. Subsequently, the district court granted summary judgment for defendant Rodriguez. A motions panel of this court characterized the district court's grant of summary judgment for defendant Rodriguez as a final judgment.

Upon further review of the record, we conclude that there is no final judgment as to all parties and all claims. See id. Accordingly, we dismiss the appeal for lack of jurisdiction. See Fed. R. Civ. P. 54(b); Chacon, 640 F.2d at 222. All pending motions are denied as moot.



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