                                                                           FILED
                             NOT FOR PUBLICATION                            SEP 25 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



REGINALD B. DEJOHNETTE,                          No. 10-17576

               Plaintiff - Appellant,            D.C. No. 3:08-cv-04844-MMC

  v.
                                                 MEMORANDUM *
CHARLES LEE; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Maxine M. Chesney, District Judge, Presiding

                           Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       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




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismiss the appeal for lack of appellate jurisdiction.

      The district court dismissed DeJohnette’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. R. App. 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 appealable if

immediately followed by the entry of judgment.”).

      Because we dismiss for lack of jurisdiction, we do not consider DeJohnette’s

outstanding motions.

      DISMISSED.




                                           2                                   10-17576
