Reginald Dejohnette v. Charles Lee

MEMORANDUM

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 dismiss the appeal for lack of appellate jurisdiction.

The district court dismissed DeJoh-nette’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. RApp. 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 appeal-able if immediately…