Vincent Sharnee Johnson, Plaintiff-appellant, v. Eddie Ylst, Warden; Ward Brown, Chief Medical Officer,defendants-appellees, 17 F.3d 394 (9th Cir. 1994)

MEMORANDUM^** 

Vincent Sharnee Johnson, a California state prisoner, appeals pro se the district court's order granting summary judgment to defendant Ylst. We conclude that we lack jurisdiction for want of a final appealable order, and we dismiss the appeal.

While neither party has raised the issue of jurisdiction, we consider our jurisdiction sua sponte. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1985). A district court order dismissing some but not all of the defendants is not a "final decision" appealable under 28 U.S.C. § 1291. McGuckin v. Smith, 974 F.2d 1050, 1053 n. 1 (9th Cir. 1992); Patchick v. Kensington Publishing Corp., 743 F.2d 675, 677 (9th Cir. 1984) (per curiam). Nevertheless, upon an express determination that there is no just reason for delay and upon an express instruction for the entry of judgment, the district court may direct the entry of a final judgment as to one or more but fewer that all of the claims. Fed. R. Civ. P. 54(b); Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir. 1985). Without a Rule 54(b) certification, orders dismissing some but not all of the defendants or claims are not final. Fed. R. Civ. P. 54(b); Frank Briscoe Co., 776 F.2d at 1416.

Here, Johnson's second amended complaint was served on two named defendants, Ylst and Brown. Both Ylst and Brown answered Johnson's complaint. On 3 April 1992, Ylst filed a motion for judgment on the pleadings or, in the alternative, summary judgment. On 18 March 1993, the district court adopted the magistrate judge's report and recommendation granting summary judgment for Ylst.

Johnson's notice of appeal was filed on 13 April 1993. Defendant Brown remained in the action after the district court granted summary judgment for Ylst. Therefore, the district court's order granting summary judgment for Ylst is not a "final decision" appealable under 28 U.S.C. § 1291. See McGuckin, 974 F.2d at 1053 n. 1. Moreover, because the district court has not issued a Rule 54(b) certification, the order is not appealable. See Frank Briscoe Co., 776 F.2d at 1416.

Accordingly, this appeal is premature and is dismissed for lack of jurisdiction.

DISMISSED.