Rodney Branham v. Ted Koehler John D. Marshall Robert H. Hoerner , 883 F.2d 74 ( 1989 )

883 F.2d 74

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Rodney BRANHAM, Plaintiff-Appellant,
v.
Ted KOEHLER; John D. Marshall; Robert H. Hoerner,
Defendants-Appellees.

No. 89-1715.

United States Court of Appeals, Sixth Circuit.

Aug. 22, 1989.

1

Before KEITH and BOYLE F. MARTIN, Jr., Circuit Judges, and JULIA S. GIBBONS, District Judge*.

ORDER

2

This court entered an order on July 3, 1989, directing the appellant to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant responded with documentation showing that his notice of appeal was given to prison authorities within the thirty-day appeal period permitted by Fed.R.App.P. and, therefore, should be deemed timely filed. See Houston v. Lack, 108 S.Ct. 2379, 2383-85 (1988). However, the order adopting the magistrate's report and recommendation from which appellant appealed is not a final, appealable order but only denied a motion for a speedy hearing for declaratory judgment and advancement of the case on the trial calendar. This court lacks jurisdiction to review an order of the district court unless it is a final decision or otherwise appealable as an interlocutory order under 28 U.S.C. Sec. 1292. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 378-79 (1981).

3

It is ORDERED that the appeal taken from a nonappealable order be, and it hereby is, dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.

*

The Honorable Julia S. Gibbons, U.S. District Judge for the Eastern District of Tennessee, sitting by designation