68 F.3d 481
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.John Allen SMITH, Plaintiff-Appellant,v.Craig JORGENSON; Clark County Public Defender's Office,Defendants-Appellees.
No. 94-15529.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 11, 1995.*Decided Oct. 20, 1995.

Before:  BEEZER, THOMPSON, and T.G. NELSON, Circuit Judges.


1
MEMORANDUM**


2
John Allen Smith, a Nevada state prisoner, appeals pro se the district court's dismissal without prejudice of his 42 U.S.C. Sec. 1983 complaint alleging violations of his right to a fair trial.  We lack jurisdiction over this appeal and dismiss.


3
An order dismissing the complaint but not dismissing the action ordinarily is not appealable under 28 U.S.C. Sec. 1291.  Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n.1 (9th Cir. 1984).  Here, the district court dismissed Smith's complaint without prejudice and with leave to refile his complaint upon the exhaustion of state remedies.  Accordingly, we dismiss for lack of jurisdiction.  See id.


4
DISMISSED.



*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed. R. App.  P. 34(a); 9th Cir.  R. 34-4


**
 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


