Stanton Maurice Hoffman v. Lewis Davis, Correctional Lieutenant Franklin Freeman, Secretary of Corrections , 42 F.3d 1385 ( 1994 )

42 F.3d 1385

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Stanton Maurice HOFFMAN, Petitioner,
v.
Lewis DAVIS, Correctional Lieutenant; Franklin Freeman,
Secretary of Corrections, Respondents.

No. 94-8077.

United States Court of Appeals, Fourth Circuit.

Submitted: Oct. 11, 1994.
Decided: Dec. 12, 1994.

On Petition for Leave to Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Richard L. Voorhees, Chief District Judge. (CA-94-71)

Stanton Maurice Hoffman, pro se. Michael F. Easley, M. Lynn Jarvis, North Carolina Department of Justice, Raleigh, NC, for respondents.

Before WILKINS and HAMILTON, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PER CURIAM:

1

Stanton M. Hoffman has filed a petition for leave to appeal, pursuant to Fed. R.App. P. 5.1. Specifically, Hoffman seeks to appeal orders of the magistrate judge denying various pretrial motions, and the district judge's denial of Hoffman's motion for reconsideration of the magistrate judge's denial of his motion to amend his complaint. Hoffman also seeks an order from this Court to stay proceedings in the district court pending this appeal, and requests that this Court allow him to proceed on his appeal in forma pauperis.

2

Leave to appeal under Fed. R.App. P. 5.1 may be granted only if the parties first consent to a trial on the merits before a magistrate judge, with appellate review of the final judgment in district court, in accordance with 28 U.S.C. Sec. 636(c)(4) (1988). Neither Hoffman nor the Defendants have consented to trial by the magistrate judge nor has a final judgment been entered. Therefore, we deny Hoffman's petition.*

3

Even if Hoffman's petition is construed as a notice of appeal, this Court lacks jurisdiction, because the orders challenged are not appealable. See Miller v. Simmons, 814 F.2d 962, 967 (4th Cir.), cert. denied, 484 U.S. 903 (1987); Tenneco Resins, Inc. v. Reeves Bros., Inc., 736 F.2d 1508, 1510 (Fed. Cir.1984); North Carolina Assoc. of Black Lawyers v. North Carolina Bd. of Law Examiners, 538 F.2d 547, 548-49 (4th Cir.1976). This Court may exercise jurisdiction only over final orders, 28 U.S.C. Sec. 1291 (1988), and certain interlocutory and collateral orders, 28 U.S.C. Sec. 1292 (1988); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). The orders here appealed are neither final orders nor appealable interlocutory or collateral orders.

4

Although we grant leave to proceed in forma pauperis, we deny the petition for leave to appeal. We deny Hoffman's motion to stay and his motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

PETITION DENIED

*

Hoffman is similarly barred in his attempt to appeal under 28 U.S.C. Sec. 636(c)(3) (1988), which permits appellate review by this Court only after a trial on the merits before a magistrate judge, pursuant to the prior consent of both parties