Charles D. Dearing, Jr. v. J.D. Swinson, Warden

990 F.2d 1256 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Charles D. DEARING, Jr., Plaintiff-Appellant, v. J.D. SWINSON, Warden, et al., Defendants-Appellees. No. 92-16990. United States Court of Appeals, Ninth Circuit. Submitted March 23, 1993. * Decided April 6, 1993. Before WALLACE, Chief Judge, and FARRIS and BRUNETTI, Circuit Judges. 1 MEMORANDUM ** 2 Charles D. Dearing, Jr., a federal prisoner, appeals pro se the district court's dismissal, with leave to amend, of his civil rights complaint. We lack jurisdiction to entertain the merits of Dearing's appeal, and we dismiss the appeal. 3 A district court order dismissing a complaint with leave to amend is not a final and appealable decision. Proud v. United States, 704 F.2d 1099, 1100 (9th Cir.1983) (per curiam). Whether the plaintiff amends the complaint is immaterial in determining the appealability of the order. Id. 4 Here, Dearing filed a complaint alleging that prison officials violated his first amendment…