Calvin Winston Jackson v. Louis S. Nelson, Warden, Lieutenant Roger and Mr. Powell of San Quentin Prison

(concurring).

I concur in the above decision because I believe the district court had not determined that Jackson could not file another amended complaint. I realize that an argument to the contrary has substance, but I reject it.

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…

405 F.2d 872 Calvin Winston JACKSON, Appellant, v. Louis S. NELSON, Warden, Lieutenant Roger and Mr. Powell of San Quentin Prison, Appellees. No. 22308. United States Court of Appeals Ninth Circuit. Dec. 13, 1968. 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. PER CURIAM: 1 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. 2 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…