883 F. 2d 74 - Branham v. Koehler

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

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).

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.