FILED
NOT FOR PUBLICATION SEP 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
REGINALD B. DEJOHNETTE, No. 10-17576
Plaintiff - Appellant, D.C. No. 3:08-cv-04844-MMC
v.
MEMORANDUM *
CHARLES LEE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Reginald B. DeJohnette, a California state prisoner, appeals pro se from the
district court’s September 30, 2010 order dismissing DeJohnette’s 42 U.S.C.
§ 1983 complaint alleging deliberate indifference to his serious medical needs. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismiss the appeal for lack of appellate jurisdiction.
The district court dismissed DeJohnette’s complaint with leave to amend.
Rather than filing an amended complaint or obtaining a final order of dismissal
from the district court, DeJohnette filed a notice of appeal. We therefore lack
jurisdiction. See WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1135-37 (9th Cir.
1997) (en banc) (a district court’s dismissal that expressly grants leave to amend is
not final, and a final judgment must be obtained before such a case becomes
appealable). The exception allowing a premature notice of appeal to be treated as
timely filed under Fed. R. App. P. 4(a)(2) does not apply. See Serine v. Peterson,
989 F.2d 371, 372 (9th Cir. 1993) (order) (“Rule 4(a)(2) permits a notice of appeal
from a nonfinal decision to operate as a notice of appeal from the final judgment
only when a district court announces a decision that would be appealable if
immediately followed by the entry of judgment.”).
Because we dismiss for lack of jurisdiction, we do not consider DeJohnette’s
outstanding motions.
DISMISSED.
2 10-17576