Summary
ruling that "the report and recommendation is not final and appealable" and appeal could not be perfected
Summary of this case from Rembert v. ApfelOpinion
No. 97-3545. Non-Argument Calendar.
DECIDED August 4, 1998.
Angela Perez-Priego, Orlando, FL, pro se.
Appeal from the United States District Court for the Northern District of Florida.
(No. 1:97-CV-174-MMP).
Maurice M. Paul, Judge.
Before GODBOLD, HILL and FAY, Senior Circuit Judges.
Angela Perez-Priego appeals the magistrate judge's report recommending that her civil-rights complaint be dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
The magistrate's report and recommendation had not been adopted by the district court at the time that Perez-Priego filed the notice of appeal and therefore the report and recommendation is not final and appealable. See 28 U.S.C. § 636(b)(1); Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1066-67 (11th Cir. 1982). Likewise, Perez-Priego's notice of appeal was not valid to perfect the appeal as of the date of the district court's judgment. See FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276, 111 S.Ct. 648, 653, 112 L.Ed.2d 743 (1991); Billingsley v. Jefferson County, 953 F.2d 1351, 1353-54 (11th Cir. 1992). Accordingly, this appeal is DISMISSED for lack of jurisdiction.
We examine our jurisdiction sua sponte even though neither party has raised the issue.