John Birges, Sr., Petitioner-appellant, v. Leon Hardison, Warden, Respondent-appellee, 78 F.3d 591 (9th Cir. 1996)

MEMORANDUM^** 

Nevada state prisoner John Birges, Sr. appeals pro se the district court's denial of his request that the district court issue a writ of mandamus against itself. Specifically, Birges objected to the district court's order that he amend his habeas petition, and requested that Judge Hagen "order Clerk or Deputy Clerk John Doe(s) to whom petitioner's case No.: CV-N-(4-354-DWH [was] assigned to read petitioner's traverse already submitted." Birges subsequently filed an amended habeas petition, and the action is pending in the district court.

Birges is essentially seeking reconsideration of the district court's order dismissing with leave to amend his 28 U.S.C. § 2254 petition. See United States v. Young, 936 F.2d 1050, 1052 (9th Cir. 1991) (per curiam) (nomenclature assigned by movant is not controlling, and the court will determine the true nature of the motion). Such an order is not final and appealable, see Proud v. United States, 704 F.2d 1099 (9th Cir. 1983), and we dismiss due to lack of jurisdiction.

DISMISSED.