Allen Leroy Peterson v. Chase Riveland

34 F.3d 1073, 1994 U.S. App. LEXIS 32120, 1994 WL 465848

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 29, 1994
• Docket: 94-35113
• Status: Unpublished

Opinion

34 F.3d 1073

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Allen Leroy PETERSON, Plaintiff-Appellant,
v.
Chase RIVELAND; et al., Defendants-Appellees.

No. 94-35113.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 23, 1994.*
Decided Aug. 29, 1994.

Before: WALLACE, Chief Judge, Hug and Rymer, Circuit Judges.

MEMORANDUM**

Leroy Allen Peterson, a Washington state prisoner, appeals pro se, the district court's denial of his appeal from the decision of the magistrate judge as untimely. The magistrate judge denied Peterson's motion for a default judgment against defendants. We dismiss Peterson's appeal for lack of jurisdiction.

After Peterson filed his complaint in district court, the district judge referred the action to Magistrate Judge Franklin D. Burgess, pursuant to 28 U.S.C. Secs. 636(b)(1)(A) & (B). On July 12, 1993, Peterson filed a motion for entry of default against defendants which the magistrate judge denied on September 1, 1993. Peterson filed objections to the magistrate judge's order on September 13, 1993. These objections were interpreted by the magistrate judge as an attempt to make Peterson's position clear for the record and were not ruled upon. On November 17, 1993, Peterson filed a notice of an out of time appeal from the magistrate judge's September 1, 1993 decision denying his motion for default. The district court denied this appeal as untimely, finding that the notice of appeal had not been filed within fifteen days of the magistrate judge's entry of decision as required by Fed.R.Civ.P. 74(a). Peterson then filed an "appeal of District Court's order denying appeal or Notice of Appeal to the Ninth Circuit Court," which the district court construed as a notice of appeal to this court.

On appeal, Peterson contends that the district court erred by dismissing his appeal from the decision of the magistrate judge as untimely. Thus, he contends that his objections to the magistrate judge's decision should have been construed as a notice of appeal to the district court. Peterson also contends that the magistrate judge erred by denying his motion for entry of default.

We lack jurisdiction over this appeal because the district court's denial of Peterson's appeal as untimely was neither a final, appealable order, see 28 U.S.C. Sec. 1291, nor an appealable collateral order, see Kuster v. Block, 773 F.2d 1048, 1049 (9th Cir.1985). Moreover, the denial of a motion for entry of default is not an appealable order, see Bird v. Reese, 875 F.2d 256, 256 (9th Cir.1989), and the district court did not certify the matter for appeal pursuant to Fed.R.Civ.P. 54(b). Accordingly, we dismiss Peterson's appeal for lack of jurisdiction.1

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

1 We deny Peterson's request for a "verba[t]im report of appellee's verbal request for extension of time."