914 F2d 262 Cunningham v. State of Nevada
914 F.2d 262
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Jerald Clarence CUNNINGHAM, Plaintiff-Appellant,
v.
STATE OF NEVADA, et al., Defendants-Appellees.
No. 89-16088.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 18, 1990.*
Decided Sept. 21, 1990.
Before GOODWIN, Chief Judge, and HUG and BEEZER, Circuit Judges.
MEMORANDUM**
Jerald Clarence Cunningham, a Nevada state prisoner, appeals pro se the district court's order dismissing his 42 U.S.C. Sec. 1983 complaint without prejudice under 28 U.S.C. Sec. 1915(d). Cunningham's complaint alleged that the Nevada statute dealing with parole eligibility for sex offenders is unconstitutional. The district court dismissed the complaint without prejudice and granted leave to amend.1 Therefore, we do not have jurisdiction to hear this appeal under 28 U.S.C. Sec. 1291 because the district court did not issue a final, appealable order. See Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984) ("[o]rdinarily an order dismissing a complaint but not dismissing the action is not appealable under section 1291"). Accordingly, this appeal is dismissed.
DISMISSED.
The panel unanimously finds this case suitable for disposition without oral argument. 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
The district court's order suggested that Cunningham could challenge the constitutionality of the state parole statute only in a petition for habeas corpus under 28 U.S.C. Sec. 2254, which would require the exhaustion of state remedies. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)