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Harris v. Gomez

submitted*fn*: June 21, 1993.

DWAYNE HARRIS, PLAINTIFF-APPELLANT,
v.
ROBERT GOMEZ, DIRECTOR, ET AL., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-91-00313-LKK. Lawrence K. Karlton, District Judge, Presiding

Before: Canby, Fernandez, and T.g. Nelson, Circuit Judges.

MEMORANDUM

Harris, a California state prisoner, filed a 42 U.S.C. § 1983 action alleging lack of proper prison medical care. The magistrate found that the claim was meritless, but gave Harris leave to amend. He then moved for appointment of counsel under 28 U.S.C. § 1915(d). The magistrate denied that motion. Harris appeals pro se the order denying counsel. We dismiss for lack of jurisdiction.

The threshold issue is whether we have jurisdiction. The magistrate dismissed Harris' complaint but granted him leave to amend and instructed him on what allegations needed to be pleaded to state a valid claim. The dismissal was not intended to end the litigation and was not a final appealable order. See McGuckin v. Smith, 974 F.2d 1050, 1053 (9th Cir. 1992).

Nor does the magistrate's order fit within the "collateral order" exception to the final judgment rule. In Wilburn v. Escalderon, 789 F.2d 1328, 1330 (9th Cir. 1986), we held that the denial of counsel under 28 U.S.C. § 1915(d) in a § 1983 action is not immediately appealable because it does not resolve an important issue completely separate from the merits. See also Weygandt v. Look, 718 F.2d 952, 953-54 (1983) (denial of counsel in a habeas corpus proceeding not an appealable interlocutory order).

If Harris pursues the litigation further and does not prevail, he may raise the denial of counsel on appeal from a final judgment. At this stage, however, we must dismiss for lack of subject matter jurisdiction because the district court has not issued a final judgment and the denial of counsel was not a collaterally appealable order.

DISMISSED.

Disposition

DISMISSE ...


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