433 F2d 1015 Feist v. A McGee

433 F.2d 1015

Gus FEIST, Jr., Plaintiff-Appellant,
Richard A. McGEE and Walter Dunbar, Defendants-Appellees.

No. 24367.

United States Court of Appeals, Ninth Circuit.

November 16, 1970.

Rehearing Denied December 3, 1970.

Gus Feist, Jr., in pro. per.

Arnold O. Overoye, Deputy Atty. Gen., Sacramento, Cal., for appellees.

Before HAMLEY, ELY and WRIGHT, Circuit Judges.


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Plaintiff, a California state prisoner at Folsom Prison, filed this civil rights action against Richard A. McGee, Walter Dunbar, and Walter E. Craven. McGee is apparently a member of the California Adult Authority, Dunbar is a member of the California Department of Corrections, and Craven is the warden of Folsom Prison.


In his complaint plaintiff presented a chronology of alleged wrongs inflicted by guards and prison officials including in at least one instance, defendant Craven. Defendants McGee and Dunbar were not mentioned in the body of the complaint.


The district court granted a motion to dismiss the action against McGee and Dunbar for failure to state a cause of action, and dismissed the complaint with leave to amend against the defendant Craven for failure to comply with Rules 8(a) and 10(b) of the Federal Rules of Civil Procedure. Plaintiff appeals from these orders.


We dismiss the appeal for lack of jurisdiction.


The order dismissing the action as against McGee and Dunbar is not subject to review at this time because the procedure for dismissals of less than all parties to an action has not been followed. See Rule 54(b), F.R.Civ.P. We decline to consider the district court's order allowing in forma pauperis review as a Rule 54(b) determination. The dismissal of the complaint, which specifically provided for leave to amend, is not a final order subject to review. Jackson v. Nelson, 405 F.2d 872 (9th Cir. 1968).


The appeal is dismissed.


Plaintiff may have sixty days from the date the mandate issues to file an amended complaint in compliance with the district court's order of April 16, 1969.