Jackson v. Nelson
| Decision Date | 13 December 1968 |
| Docket Number | No. 22308.,22308. |
| Citation | 405 F.2d 872 |
| Parties | Calvin Winston JACKSON, Appellant, v. Louis S. NELSON, Warden, Lieutenant Roger and Mr. Powell of San Quentin Prison, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Calvin Winston Jackson, for appellant.
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Jerome C. Utz, Deputy Attys. Gen., San Francisco, Cal., for appellees.
Before CHAMBERS, POPE and HAMLEY, Circuit Judges.
Defendants moved to dismiss the complaint in this civil rights action on the ground that the complaint, as amended, fails to state a claim upon which relief can be granted. Alternatively, they moved for summary judgment, asserting that the complaint was frivolous. The district court granted the motion to dismiss the complaint and did not pass upon the alternative motion. Plaintiff appeals.
An order dismissing a complaint but not dismissing the action is not final and appealable, under 28 U.S.C. § 1291 (1964), unless there are special circumstances which make it clear that a court determined that the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make. Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 643.
We do not believe that such special circumstances exist in this case. In its order dismissing the complaint, the district court was careful to state that the complaint "dated June 12, 1967" is dismissed because it "does not state a cause of action against defendants." Moreover, examination of the complaint, as supplemented, reveals a series of broad conclusory statements unsupported, for the most part, by specific allegations of fact. In addition, the individual defendants are nowhere referred to in the pleadings, other than in the title to the action, and there is, consequently, no way of determining which defendant, if any, is being charged with responsibility for a particular grievance.
The fact that the district court granted Jackson leave to appeal in forma pauperis is a circumstance which this court may accept as demonstrating that the district court determined that the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make. See DeWitt v. Pail, 9 Cir., 366 F.2d 682, 684-685. However, in view of the additional circumstances present in this case, as described above, we are unwilling to accept this action by the district court as conclusively establishing, in this case, that the court...
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...action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make. Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir. 1968) (citation omitted). Accord, Lanning v. Serwold, 474 F.2d 716, 717 n.1 (9th Cir. 1973); Ruby v. Secretary of the United S......
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...indicate that the action could not be saved by any amendment which the plaintiff could reasonably be expected to make. Jackson v. Nelson, 405 F.2d 872 (9th Cir. 1968); Ruby v. Secretary of Navy, 365 F.2d 385 (9th Cir. 1966), cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967).......
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...some type against the defendant. 5 C. Wright and A. Miller, Federal Practice and Procedure: Civil 596 (1969); see also Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir.1968); Stewart v. Hevelone, 283 F.Supp. 842, 844 (D.Neb.1968). Thus, rules of civil procedure clearly contemplate some stateme......
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...that it is possible to determine which Defendant is being charged with responsibility for each particular grievance. Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir.1968). It must be clear what injury resulted from each alleged The Amended Complaint must be clearly designated as "Amended Comp......