Jones v. Riggs ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7172
RICCARDO DARNELL JONES,
Plaintiff – Appellant,
v.
SGT. RIGGS,
Defendant – Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Russell A. Eliason,
Magistrate Judge. (1:08-cv-00390-UA-RAE)
Submitted: December 18, 2008 Decided: January 9, 2009
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Dismissed and remanded by unpublished per curiam opinion.
Riccardo Darnell Jones, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Riccardo Darnell Jones appeals from the magistrate
judge’s order denying his motion for preliminary injunction.
Because we find that the magistrate judge did not have authority
to enter a final, appealable order in this matter, we dismiss
the appeal without prejudice for lack of jurisdiction and remand
to the district court for further proceedings.
Pursuant to 28 U.S.C. § 636(c) (2000), a magistrate
judge may enter a final order directly appealable to the court
of appeals upon consent of all parties. Otherwise, under
§ 636(b), a district court must initially review the magistrate
judge’s order or proposed findings under either a de novo or
clearly erroneous standard of review depending upon the nature
of the ruling appealed. Absent an express adoption,
modification, or rejection of the magistrate judge’s ruling by
the district court, the ruling is generally not reviewable by
the court of appeals. See Reynaga v. Cammisa, 971 F.2d 414,
416-18 (9th Cir. 1992). In this case, we find nothing in the
record showing that the parties agreed to have the motion
decided by the magistrate judge. As a result, the magistrate
judge lacked the authority to enter a final dispositive order.
See Gleason v. Sec’y of Health & Human Servs., 777 F.2d 1324,
1324 (8th Cir. 1985). Accordingly, we dismiss this appeal and
remand to the district court for further proceedings. See
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Massey v. City of Ferndale, 7 F.3d 506, 510-11 (6th Cir. 1993)
(dismissing appeal from unauthorized order issued by magistrate
judge but remanding to district court for corrective action).
We further deny Jones’ motion for appointment of counsel and
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.
DISMISSED AND REMANDED
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