* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 29 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
JASON AARON SIMMONS, Plaintiff-Appellant,

v. J. CHACON; P. ASTON; CITY OF DENVER, Defendants-Appellees. No. 96-1267 (D.C. No. 95-B-2392) (D. Colo.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. Jason Aaron Simmons, a prisoner, initiated this civil rights action pro se under 42 U.S.C. § 1983, against the City and Cou nty of Denver (the City) and Mr. J. Chacon and Mr. P. Ashton, two individual pol ice officers employed by the City.
On April 9, 1996, the magistrate judge recommended the City's motion to dismiss for failure to state a claim be granted. T he magistrate judge recognized a municipality may not be held liable under § 1983 un less there is a showing of a practice or procedure that systematically denies co nstitutional rights. After reviewing Mr. Simmons’ complaint, the magistrate fo und "[n]o such allegations exist in this case, no matter how broadly the compl aint is construed."
On April 24, 1996, the district court granted the C ity's motion to dismiss based on the magistrate judge's reasoning and recom mendation. On June 5, 1996, Mr. Simmons filed a notice of appeal purporting to appeal the district court's Order of April 24, 1996.
On February 7, 1997, the district court granted the remaining individual defendants' (Mr. Chacon and Mr. Ashton) motion for summary judgment. Pursuant to the district court's order, final judgm ent was entered dismissing Mr.1 Appellees' argument that Mr. Simmons' notice of appeal was untimely

because it was filed forty-two days after the April 24, 1996 Order is wholly without merit. A premature filing, which by defini tion is filed too early, cannot logically be late. -3- Simmons' action with prejudice.
As a preliminary matter, we must determine if we have jurisdiction to consider this appeal. Appellees, the City and the individual defendants, contend we lack jurisdiction to consider this appeal in its entirety because Mr. Simmons' notice of appeal was untimely. In the alternative, Appellees assert that even if jurisdiction is proper regarding the April 24, 1996 dismissal of the City, we lack jurisdiction to consider the district court's Febru ary 7, 1997 Order granting summary judgment in favor of the individual defenda nts.
In this action, the district court entered two sepa rate orders on two separate occasions against two separate defendants. On Apri l 24, 1996, the district court dismissed the claims against the City. Mr. Simmons duly filed a notice of appeal. However, because the claims against the individual defendants, Mr. Chacon and Mr. Ashton, still remained unadjudicated in the dis trict court, the district court's April 24, 1996, Order was not yet final and appeala ble. Hence, Mr. Simmons' notice of appeal was premature. 1 See Nolan v. United States Dep't of Justice , 973-4-

F.2d 843, 845-46 (10th Cir. 1992) (notice of appeal premature when filed before all claims against all defendants had been adjudicated). A notice of appeal, which is premature at filing because all claims have not been adjudicated, ripens upon disposition of the remaining claims. Id. at 846; Lewis v. B.F. Goodrich Co. , 850 F.2d 641, 645 (10th Cir. 1988). However, the filin g of a final order merely serves to perfect a premature appeal and does not automati cally effectuate the appeal of every judgment or order rendered in the case. Nolan , 973 F.3d at 846. Thus, the filing of the district court's final order on Febru ary 7, 1997 perfected Mr. Simmons' premature appeal of the April 24, 1996 Ord er, but it did not effectuate an appeal of the February 7, 1997 Order. See id . As such, we lack jurisdiction to consider Mr. Simmons' challenges to the district co urt's order granting summary judgment in favor of the individual defendants, butretain jurisdiction to consider the merits of Mr. Simmons' challenges to the distri ct court's dismissal of the City.
On appeal, we review the grant of a motion to dismi ss for failure to state a claim de novo
. Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 854 (10th Cir. 1996). In so doing, we accept all well-pleaded allegations as true and uphold a dismissal only if it appears that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Maez v. Mountain States Tel. & Tel., Inc. , 54 F.3d 1488, 1496 (10th Cir. 1995).-5-

After consideration of Mr. Simmons' arguments and r eview of the record, we agree with the district court that Mr. Simmons f ailed to allege sufficient facts to state a § 1983 claim against the City. In his c omplaint and on appeal, Mr. Simmons merely recites the events of his arrest fro m his perspective. He does not allege or mention a policy or custom of the City, w hich caused his injuries. Without such allegations, even in the barest form, Mr. Simmons fails to state a claim against the City upon which relief may be gra nted. See City of Canton v. Harris , 489 U.S. 378, 389 (1989) (municipality may only b e held liable under § 1983 where its policies are the "moving force" be hind the injury). As such, we conclude Mr. Simmons' appeal is frivolous within th e meaning of 28 U.S.C. § 1915(e)(2)(B)(i) and we dismiss this appeal. Bec ause this appeal is dismissed as frivolous pursuant to § 1915(e)(2)(B)(i), this appeal counts as a "prior occasion" under 28 U.S.C. § 1915(g).
In addition, Mr. Simmons' motion to proceed withoutprepayment of costs and motion to recall the mandate are DENIED
.

Entered for the Court WADE BRORBY United States Circuit Judge