103 F3d 143 Wiggins II v. Wilson

103 F.3d 143

Weldon Eugene WIGGINS, II, Plaintiff-Appellant,
v.
Pete WILSON, Governor; James Gomez, Director, Department of
Corrections; Jerry Stainer; Sgt. Briondo,
Defendants-Appellees.

No. 96-15475.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 18, 1996.*
Decided Nov. 20, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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


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1

MEMORANDUM**

2

Weldon Eugene Wiggins II, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action with prejudice for failing to comply with an order requiring Wiggins to timely file an amended complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

3

The record shows that on August 23, 1995, the district court dismissed Wiggins's complaint, but granted Wiggins leave to amend. The district court ordered Wiggins's amended complaint to be filed by September 22, 1995. Rather than filing an amended complaint, Wiggins filed a notice of appeal to this court on September 6, 1995. On October 27, 1995, this court dismissed Wiggins's appeal for lack of jurisdiction. Wiggins subsequently filed his amended complaint on November 9, 1995. Because the time to file Wiggins's amended complaint was stayed during the pendency of his appeal, the district court erred by dismissing his action.

4

REVERSED.

*

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