United States Court of Appeals
For the Eighth Circuit
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No. 13-1600
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James Mark Vogel
lllllllllllllllllllll Plaintiff - Appellant
v.
Scot Turner, Aitkin County Sheriff; Debra Hamilton, Jail Administrator; Jeremy
Swensen, Asst. Jail Admin.; Janet Larsen, LPN; Dianne Grinde, D.O.C. Rep.
llllllllllllllllllll Defendants - Appellees
Alicia Petersen, Jail Nurse
llllllllllllllllllll Defendant
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: August 29, 2013
Filed: September 12, 2013
[Unpublished]
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Before SMITH, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
James Mark Vogel appeals following the district court’s1 grant of summary
judgment to some defendants in his 42 U.S.C. § 1983 action. We find that
jurisdiction is lacking over this premature appeal. See Huggins v. FedEx Ground
Package Sys., Inc., 566 F.3d 771, 773 (8th Cir. 2009) (where it appears jurisdiction
is lacking, appellate courts are obligated to consider sua sponte jurisdictional issues).
Specifically, when Vogel filed his notice of appeal (NOA), his claims against Alicia
Peterson were still pending, as the district court had yet to adopt the magistrate’s
report recommending the dismissal without prejudice of those claims. The court later
did so, and then entered final judgment, but this does not save Vogel’s premature
appeal. See 28 U.S.C. § 1291 (courts of appeals have jurisdiction of appeals from
final decisions); Thomas v. Basham, 931 F.2d 521, 523 (8th Cir. 1991) (appeal was
premature when some claims remained pending); see also Dieser v. Cont’l Cas. Co.,
440 F.3d 920, 924-25 (8th Cir. 2006) (later entry of judgment did not save
prematurely filed NOA because, when NOA was filed, district court had not
announced decision that would be appealable if immediately followed by entry of
judgment). We dismiss the appeal for lack of jurisdiction.
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1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Jeanne J.
Graham, United States Magistrate Judge for the District of Minnesota.
-2-