103 F.3d 137: Danny Boyd, Plaintiff-appellant, v. Terry Crawford, Detective, Oregon State Police; Terrybekkedahl, Criminalist, Oregon State Police, Defendants,andgary Fisher, Detective, City of Salem Police Department,defendant-appellee
United States Court of Appeals, Ninth Circuit. - 103 F.3d 137
Submitted Dec. 2, 1996.*Decided Dec. 5, 1996
Before: SNEED, TROTT, and THOMAS, Circuit Judges.
Danny Boyd, an Oregon state prisoner, appeals pro se the district court's summary judgment in favor of defendants in Boyd's 42 U.S.C. § 1983 action in which Boyd alleged that defendants violated several of his constitutional rights in connection with a homicide investigation at the Oregon State Penitentiary. We dismiss for lack of jurisdiction.
Appellees contend that this court lacks jurisdiction over Boyd's appeal. We agree. Boyd's notice of appeal is deemed filed on August 2, 1995, when Boyd delivered it to prison authorities. See Houston v. Lack, 487 U.S. 266, 275-76 (1988); see also Koch v. Ricketts, 68 F.3d 1191, 1193 (9th Cir.1995).1 On August 3, 1995, the district court entered an order adopting the magistrate judge's report and recommendation, and entered judgment dismissing the action. Because the magistrate's findings and recommendations is not a final appealable order, Boyd's notice of appeal was premature. See Serine v. Peterson, 989 F.2d 371, 372-73 (9th Cir.1993). The prematurity cannot be cured by the subsequent entry of judgment because the magistrate's findings and recommendations "could not form the basis of a final judgment without subsequent intervention by the district court." See id. at 373. Absent timely filing of the notice of appeal, this court lacks jurisdiction over Boyd's appeal. See Koch, 68 F.3d at 1192.
In his notice of appeal, Boyd states that he is appealing from the order entered on July 14, 1995, which refers to the magistrate judge's findings and recommendations
Because of our disposition of this appeal, we do not consider the applicability, if any, of the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), to this appeal