Love Joy Miller v. State Security Unit

985 F.2d 573, 1993 U.S. App. LEXIS 8291, 1993 WL 22217

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 29, 1993
• Docket: 91-15275
• Status: Unpublished

Opinion

985 F.2d 573

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Love Joy MILLER, Petitioner-Appellant,
v.
STATE SECURITY UNIT, et al., Respondents-Appellees.

No. 91-15275.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 27, 1993.*
Decided Jan. 29, 1993.

Before REINHARDT, CYNTHIA HOLCOMB HALL and LEAVY, Circuit Judges.

MEMORANDUM**

Love Joy Miller, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action as frivolous pursuant to 28 U.S.C. 1915(d). We dismiss this appeal for lack of jurisdiction.

The district court entered its judgment on February 23, 1990. Miller failed to file a notice of appeal within 30 days of the entry of judgment, or at any time thereafter.

Instead, Miller filed a premature notice of appeal on January 30, 1990, after the magistrate judge issued his findings and recommendation on January 18, 1990.1 The magistrate judge's order is not an appealable final order. See Hilliard v. Kincheloe, 796 F.2d 308, 309 (9th Cir.1986). Accordingly, we lack jurisdiction to consider this appeal. See Munden v. Ultra-Alaska Assoc., 849 F.2d 383, 386 (9th Cir.1988) ("[t]he requirement of a timely notice of appeal is mandatory and jurisdictional").

DISMISSED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Miller's request for oral argument is denied

** 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 In his notice of appeal filed on January 30, 1990, Miller purported to appeal from an order entered on December 20, 1989. According to the docket and the record on appeal, no order was filed or entered on that date