United States v. Browning ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7059
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES HOLMAN BROWNING, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:03-cr-00036-WLO-2; 1:06-cv-00024-WLO-
WWD)
Submitted: October 14, 2010 Decided: October 22, 2010
Before MOTZ, KING, and DAVIS, Circuit Judges.
Dismissed and remanded by unpublished per curiam opinion.
James Holman Browning, Jr., Appellant Pro Se. Angela Hewlett
Miller, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Holman Browning, Jr., a federal prisoner,
appeals an order of the magistrate judge denying his motions for
relief under Fed. R. Civ. P. 60(b), to compel, and for default
judgment. Because we conclude that the magistrate judge did not
have authority to enter a final, appealable order in this
matter, we deny a certificate of appealability, dismiss the
appeal without prejudice for lack of jurisdiction, and remand to
the district court for further proceedings.
Pursuant to 28 U.S.C.A. § 636(c) (West Supp. 2010), a
magistrate judge may enter a final order directly appealable to
a court of appeals upon the 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 consented to have the motions
decided by the magistrate judge. As a result, the magistrate
judge lacked the authority to enter a final dispositive order.
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See Gleason v. Sec’y of Health & Human Servs., 777 F.2d 1324,
1324 (8th Cir. 1985).
Accordingly, we deny a certificate of appealability,
dismiss this appeal, and remand to the district court for
further proceedings. See 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 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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