Reginald B. Dejohnette v. Charles Lee;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REGINALD B. DEJOHNETTE,
Plaintiff - Appellant,
v.
CHARLES LEE; et al.,
Defendants - Appellees.
No. 10-17576
D.C. No. 3:08-cv-04844-MMC
MEMORANDUM*
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
FILED
SEP 25 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-17576 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.

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