Dwayne Harris v. Robert Gomez, Director

996 F.2d 1224 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Dwayne HARRIS, Plaintiff-Appellant, v. Robert GOMEZ, Director, et al., Defendant-Appellee. No. 92-15300. United States Court of Appeals, Ninth Circuit. Submitted June 21, 1993.* Decided July 1, 1993. Before: CANBY, FERNANDEZ, and T.G. NELSON, Circuit Judges. — 1 — MEMORANDUM** — 2 — 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. — 3 — 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). — 4 — 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). — 5 — 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. — 6 — DISMISSED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3