McGuckin v. Smith

• Decision Date: 08 November 1991
• Docket Number: No. 90-16651,90-16651
• Parties: John C. McGUCKIN, Plaintiff-Appellant, v. Dr. SMITH, et al.; John C. Medlen, Dr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1050

974 F.2d 1050

23 Fed.R.Serv.3d 922

John C. McGUCKIN, Plaintiff-Appellant, v. Dr. SMITH, et al.; John C. Medlen, Dr., Defendants-Appellees.

No. 90-16651.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 8, 1991 ^*.

Decided Aug. 24, 1992.

John C. McGuckin, pro se.

Bruce L. Skolnik, Asst. Atty. Gen., Tucson, Ariz., for defendant-appellee.

Tom Slutes, Slutes, Sakrison, Even, Grant & Pelander, Tucson, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: POOLE, REINHARDT, and FERNANDEZ, Circuit Judges.

REINHARDT, Circuit Judge:

John McGuckin, an Arizona state prisoner, brought a pro se 42 U.S.C. § 1983 action against several prison medical authorities at the Arizona Department of Corrections (ADOC) and Dr. John C. Medlen, a private orthopedic specialist who does consulting work for the ADOC. McGuckin alleged that the defendants were deliberately indifferent to his serious medical needs. The district court dismissed without prejudice his claims against defendants Dr. Dimitri Catsaros and Ron Buttram, and granted summary judgment in favor of defendants Dr. Theodore J. Smith and Dr. John C. Medlen. McGuckin appeals.

Jurisdiction

Although neither party has addressed the question, we are required to raise issues concerning our jurisdiction sua sponte. See Abernathy v. Southern California Edison, 885 F.2d 525, 527 (9th Cir.1989). The dismissal of defendants Catsaros and Buttram was "without prejudice": if the dismissal did not constitute a "final decision[ ]" of the district court, then we do not have jurisdiction over McGuckin's appeal. 28 U.S.C. § 1291. ¹

Final rulings generally "en[d] the litigation on the merits". Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945); see also Firstier Mortg. Co. v. Investors Mortg. Ins. Co., --- U.S. ----, ---- & n. 3, 111 S.Ct. 648, 651 & n. 3, 112 L.Ed.2d 743 (1991) (noting rule and exception). Usually, a dismissal without prejudice does not do so. "A dismissal without prejudice opens the door to a renewed contest. A dismissal with prejudice brings the contest to a close." Salveson v. Western States Bankcard Ass'n, 731 F.2d 1423, 1432 (9th Cir.1984).

However, the § 1291 "finality" inquiry is not necessarily dependent on whether the district court's action operates as an adjudication on the merits. For example, while dismissals based on lack of jurisdiction are not adjudications on the merits, they nevertheless are "final orders" and are appealable under § 1291. See Rogers v. United States, 902 F.2d 1268, 1269 (7th Cir.1990) (subject matter jurisdiction); Reuber v. United States, 773 F.2d 1367, 1368 (D.C.Cir.1985) (per curiam) (personal jurisdiction). Rather, the inquiry is whether the decision "ends the litigation and leaves nothing more for the court to do." United States v. Lee, 786 F.2d 951, 956 (9th Cir.1986) (citing cases). "[A]n order which effectively sends a party out of court is appealable." Id.; see also Herrington v. County of Sonoma, 706 F.2d 938, 939 (9th Cir.1983) (same).

A district court's dismissal "without prejudice" may have one of two effects. First, the district court may intend to dismiss a currently-filed claim or complaint but permit the plaintiff to amend his complaint in the same action. In such a case, the district court does not " 'leave[ ] nothing for the court to do but execute the judgment' ", Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)), and the dismissal is ordinarily not appealable. See Ordower v. Feldman, 826 F.2d 1569, 1572 (7th Cir.1987) ("If a district court's dismissal leaves a plaintiff free to file an amended complaint, the dismissal is not considered a final appealable order.") (citing cases). However, there is an important exception to that general rule: "if the plaintiff cannot cure the defect that led to dismissal or elects to stand on the dismissed complaint ... the order of dismissal is final and appealable." Welch v. Folsom, 925 F.2d 666, 668 (3d Cir.1991) (citing cases); see also Ordower, 826 F.2d at 1572 (same); McCalden v. California Library Ass'n, 955 F.2d 1214, 1224 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2306, 119 L.Ed.2d 227 (1992). ("[A]ppellant is not required to amend in order to preserve his right to appeal. When one is granted leave to amend a pleading, she may elect to stand on her pleading and appeal, if the other requirements for a final, appealable judgment are satisfied.").

Alternatively, a dismissal without prejudice may be intended to end the litigation in the court involved but not to act as an adjudication on the merits or to bar the filing of a similar action in another court. Such a dismissal would be a "final" disposition and hence appealable. See Production & Maintenance Employees Local 504 v. Roadmaster Corp., 954 F.2d 1397, 1402 (7th Cir.1992) (citing cases); Ordower, 826 F.2d at 1572. The fact that the plaintiff could refile the action in another (state or federal) court--or in the same court in a new action--is irrelevant to the finality inquiry. See In Re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1129 (7th Cir.1988) (noting that dismissal "is appealable even if it is ancillary to a proceeding in another forum--even if it kicks off the proceeding in the other forum"); see also Disher v. Information Resources, Inc., 873 F.2d 136, 139 (7th Cir.1989) ("The situation is different where, as in this case, the dismissal without prejudice winds up the litigation in the federal court system. True, the litigation continues in the state courts. But an order that ends litigation in one dispute-resolution system is final and appealable even though it kicks off litigation in another.") (citing cases).

The initial question, then, is whether the district court's "dismissal without prejudice" of defendants Catsaros and Buttram was intended to end the litigation against them in the present action or whether the district court intended to permit McGuckin to amend his complaint in that action prior to dismissal. In resolving this inquiry, although " 'the trial judge's characterization of his own action cannot control the classification of the action,' " United States v. Scott, 437 U.S. 82, 96, 98 S.Ct. 2187, 2196, 57 L.Ed.2d 65 (1978) (quoting United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (opinion of Harlan, J.)), the proper focus is on what effect the district court intended its order to have. See Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514-15 (9th Cir.1987); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984). We must "focus on the effect of the ruling rather than the label placed on it." United States v. Lee, 786 F.2d 951, 955 (9th Cir.1986).

In the present case, the record clearly demonstrates that the district court intended its dismissal of defendants Catsaros and Buttram to end McGuckin's litigation against those defendants in this action. McGuckin was not advised that he could amend his complaint prior to dismissal, nor was he given an opportunity to do so. See infra at 1055-57. Moreover, the district court's docketing sheet described the district court's judgment of September 25, 1990 as "terminating [the] case". In addition, in the district court's order of September 24, 1990, in which it dismissed McGuckin's claims against Catsaros and Buttram, the district court judge explicitly stated that "[a] formal Order will follow for purposes of appeal" (emphasis added), thus indicating that he felt that his involvement in the case was over and that an appeal from his "final decision" would be proper. There is no indication whatsoever that the district court felt that it had anything left to do other than to enter the judgment in the case, which it did on September 25, 1990. We therefore find that it rendered a "final decision" on that date. Accordingly, we have jurisdiction over McGuckin's appeal. ²

Defendant Catsaros

The district court dismissed McGuckin's claims against Catsaros pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that his complaint failed to state a claim upon which relief could be granted. McGuckin contends that the dismissal was improper because the district court did not give him a statement of the deficiencies of his complaint and an opportunity to amend prior to dismissal.

We review de novo the district court's dismissal of McGuckin's pro se complaint. See Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir.1987). His complaint was typed on a standard "form" for § 1983 actions given to incarcerated prisoners. McGuckin's complaint listed Catsaros as a party defendant and McGuckin caused him to be properly served with a summons and a copy of the complaint. Although only the caption of the complaint explicitly mentioned Catsaros by name, the body of the complaint contained allegations of deliberate indifference by "the entire medical department" of the prison. In addition, among other papers filed by McGuckin, his reply to the motions for summary judgment contained a paragraph entitled "Defendant Catsaros" which detailed McGuckin's claims against Catsaros, and his affidavit of August 23 1990 extensively described Catsaros' involvement in McGuckin's treatment. The district court nevertheless dismissed McGuckin's claims against Catsaros "because plaintiff's complaint contains no allegations against him," despite simultaneously recognizing that "Plaintiff ... claims ... that defendant CATSAROS deliberately ignored Dr. Foote's diagnosis; that he refused to order a CT scan to confirm the diagnosis; and that he provided ineffective pain treatment to plaintiff."

Because "the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel," Noll, 809 F.2d at 1448, "[t]he Supreme Court has...