Ora Otis Kidd v. Dep't of Corr., 993 F.2d 883 (9th Cir. 1993). · Go Syfert
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Ora Otis Kidd v. Dep't of Corr., 993 F.2d 883 (9th Cir. 1993). Cases Citing This Book View Copy Cite
83 citation events (39 in the last 25 years) across 11 distinct courts.
Strongest positive: United States v. Borrego (nmd, 2023-12-12)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Borrego
D.N.M. · 2023 · confidence medium
Co. of Am., 993 F.2d 883 at *1 (9th Cir. 1993)(unpublished)).
cited Cited "see" Lee v. Kijakazi
N.D. Cal. · 2022 · signal: see · confidence high
See Miller v. 20 Lifestyle Creations, Inc., 993 F.2d 883 (9th Cir. 1993).
cited Cited "see" Garcia v. Dudum
N.D. Cal. · 2022 · signal: see · confidence high
See Miller, 993 F.2d at 13 883. 14 15 DISCUSSION 16 The Court will convert defendants’ second motion to dismiss for mootness to a motion for 17 summary judgment.
cited Cited "see" Garcia v. Dudum
N.D. Cal. · 2021 · signal: see · confidence high
See Miller, 993 F.2d at 883.
discussed Cited "see" Santerre v. Agip Petroleum Co., Inc.
S.D. Tex. · 1999 · signal: see · confidence high
“The questions of *568 subject matter jurisdiction and the merits will normally be considered intertwined where the statute provides both the basis of federal court subject matter jurisdiction and the cause of action.” Clark, 798 F.2d at 742 (citing Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139 (9th Cir.1983)); see Miller v. Lifestyle Creations, Inc., 993 F.2d 883 , 1993 WL 173724, at *1 (9th Cir. May 24, 1993); Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.), cert. denied, 484 U.S. 986 , 108 S.Ct. 503 , 98 L.Ed.2d 501 (1987). 2.
discussed Cited "see, e.g." Thompson v. Harbison
D. Alaska · 2023 · signal: see also · confidence low
See also Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083 , 1087-88 (9th Cir. 2002) (denial of leave to amend is not an abuse of discretion if the “basic flaw” in the underlying facts cannot be cured by amendment). 44 Kidd v. Dep't of Corr., 993 F.2d 883 (9th Cir.1993). 45 See, e.g., Cato v. United States, 70 F.3d 1103 , 1105 n.2 (noting that courts may dismiss under § 1915 a complaint that merely repeats pending or previously litigated claims).
discussed Cited "see, e.g." Slaikeu v. Mcclenahan
D. Alaska · 2023 · signal: see also · confidence low
See also Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083 , 1087-88 (9th Cir. 2002) (denial of leave to amend is not an abuse of discretion if the “basic flaw” in the underlying facts cannot be cured by amendment). 44 Kidd v. Dep't of Corr., 993 F.2d 883 (9th Cir.1993). 45 28 U.S.C. § 1915 (g). 46 Id. 47 A voluntary dismissal does not count as a “strike” under 28 U.S.C. § 1915 (g).
discussed Cited "see, e.g." Slaikeu v. Deboard
D. Alaska · 2023 · signal: see also · confidence low
See also Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083 , 1087-88 (9th Cir. 2002) (denial of leave to amend is not an abuse of discretion if the “basic flaw” in the underlying facts cannot be cured by amendment). 44 Kidd v. Dep't of Corr., 993 F.2d 883 (9th Cir.1993). 45 28 U.S.C. § 1915 (g). 46 Id. 47 A voluntary dismissal does not count as a “strike” under 28 U.S.C. § 1915 (g).
discussed Cited "see, e.g." Slaikeu v. Mcclenahan
D. Alaska · 2023 · signal: see also · confidence low
See also Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083 , 1087-88 (9th Cir. 2002) (denial of leave to amend is not an abuse of discretion if the “basic flaw” in the underlying facts cannot be cured by amendment). 44 Kidd v. Dep't of Corr., 993 F.2d 883 (9th Cir.1993). 45 28 U.S.C. § 1915 (g). 46 Id. 47 A voluntary dismissal does not count as a “strike” under 28 U.S.C. § 1915 (g).
cited Cited "see, e.g." Johnson v. Montpelier One LLC
N.D. Cal. · 2020 · signal: see, e.g. · confidence low
Soremekun v. Thrifty Payless, Inc., 19 509 F.3d 978, 984 (9th Cir. 2007); see, e.g., Miller v. Lifestyle Creations, Inc., 993 F.2d 883 (9th 20 Cir. 1993).
discussed Cited "see, e.g." Mastronardi International Limited v. SunSelect Produce (California), Inc.
E.D. Cal. · 2019 · signal: see also · confidence low
But here the question of 15 SunSelect’s standing to maintain its trust and prompt payment claims is intertwined with the 16 merits of those claims, and the Ninth Circuit has instructed that “where jurisdiction is so 17 intertwined with the merits that its resolution depends on the resolution of the merits, ‘the trial 18 court should employ the standard applicable to a motion for summary judgment.’” Careau Grp. v. 19 United Farm Workers of Am., AFL-CIO, 940 F.2d 1291, 1293 (9th Cir. 1991) (citing Augustine v. 20 United States, 704 F.2d 1074, 1077 (9th Cir. 1983)); see also Miller v. L…
Retrieving the full opinion text from the archive…
Ora Otis Kidd
v.
Department of Corrections
93-35151.
Court of Appeals for the Ninth Circuit.
May 24, 1993.
993 F.2d 883
Cited by 8 opinions  |  Unpublished

993 F.2d 883

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.
Ora Otis KIDD, Plaintiff-Appellant,
v.
DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

No. 93-35151.

United States Court of Appeals, Ninth Circuit.

Submitted May 12, 1993.[*]
Decided May 24, 1993.

Before: HUG, WIGGINS, and THOMPSON, Circuit Judges.

1

MEMORANDUM[**]

2

Ora Otis Kidd, a Washington State prisoner, appeals pro se the district court's order dismissing without prejudice his first amended complaint prior to service of process pursuant to Fed.R.Civ.P. 41(b) for failure to comply with a court order. Kidd also appeals the district court's denial of his motion for a temporary restraining order ("TRO"). We have jurisdiction pursuant to 28 U.S.C. § 1291 over Kidd's appeal from the dismissal of his complaint, and we vacate and remand.[1] We dismiss Kidd's appeal from the denial of his motion for a TRO for lack of jurisdiction.

3

* Dismissal of Complaint

4

In his original complaint, Kidd alleged that he had been repeatedly transferred against his will to the penitentiary's Mental Health Unit ("MHU") in violation of his due process rights. The district court, finding that Kidd's complaint failed to state a cause of action, required him to amend the complaint prior to issuing service of process on the defendants. Because, however, the district court did not order service, its dismissal of Kidd's amended complaint was proper only if the original complaint was frivolous. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir.1991) (a district court may dismiss a complaint sua sponte prior to a responsive pleading only it is frivolous).

5

A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). In civil rights cases where the plaintiff appears pro se, the court must construe pleadings liberally and afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 623 (9th Cir.1988). If a plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989) (citing Neitzke, 490 U.S. at 329-30).

6

Construing Kidd's complaint liberally, we cannot say that the claim lacks an arguable basis in either law or fact. See Vitek v. Jones, 445 U.S. 480, 491-92 (1980) (civil commitment of prisoners involves a significant deprivation of liberty to which procedural due process protections apply). Accordingly, because Kidd's claim that he was being transferred to the MHU in violation of due process is not frivolous, the district court erred by requiring Kidd to amend his complaint and by dismissing Kidd's action prior to service of process. See Neitzke, 490 U.S. at 329-30; Jackson, 885 F.2d at 640.

II

Denial of TRO

7

Kidd sought a TRO to prevent the defendants from transferring him to the MHU pending the outcome of his state court proceedings. Ordinarily, an appeal does not lie from the denial of an application for a TRO; such appeals are considered premature and are disallowed "[i]n the interest of avoiding uneconomical piecemeal appellate review." Religious Tech. Ctr., Church of Scientology Int'l Inc. v. Scott, 869 F.2d 1306, 1308 (9th Cir.1989) (quotations omitted). In addition, the denial of a TRO is not generally appealable unless it effectively decides the merits of the case. Graham v. Teledyne-Continental Motors, 805 F.2d 1386, 1388 (9th Cir.1986), cert. denied, 484 U.S. 815 (1987).

8

We have recognized, however, that a denial of a TRO may be appealed if the circumstances render the denial "tantamount to the denial of a preliminary injunction." Religious Tech. Ctr., 869 F.2d at 1308 (quoting Environmental Defense Fund, Inc. v. Andrus, 625 F.2d at 861, 862 (9th Cir.1980)). In Andrus, we held that the denial of a TRO was tantamount to the denial of a preliminary injunction where the denial of the TRO followed a "full adversary hearing" and, "in the absence of review, the appellants would be effectively foreclosed from pursuing further interlocutory relief." 625 F.2d at 862.

9

Here, the denial of Kidd's motion for a TRO did not follow a full adversary hearing. Moreover, the district court's order does not indicate that Kidd would be foreclosed from pursuing further interlocutory relief at a later time. Accordingly, because the denial of Kidd's motion for a TRO was not tantamount to the denial of a preliminary injunction, we lack jurisdiction to consider the appeal. See Religious Tech. Ctr., 869 F.2d at 1308.

10

VACATED and REMANDED in part, DISMISSED in part.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, we deny Kidd's request for oral argument

**

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

1

Ordinarily, a dismissal of a complaint without prejudice does not constitute a final order for the purposes of appeal. See California v. Harvier, 700 F.2d 1217, 1218 (9th Cir.), cert. denied, 464 U.S. 820 (1983). Nevertheless, we exercise jurisdiction because it is clear from its order that the district court intended the dismissal to terminate Kidd's action. See Nevada v. Burford, 918 F.2d 854, 855 (9th Cir.1990) (dismissal of complaint appealable where it is clear district court intended to terminate action), cert. denied, 111 S.Ct. 2052 (1991)