Thomas Wilson v. Sally Chickering ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7185
THOMAS C. WILSON,
Plaintiff - Appellant,
v.
SALLY ANN CHICKERING,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Paige Jones Gossett, Magistrate
Judge. (0:16-cv-01579-TMC)
Submitted: December 20, 2016 Decided: December 22, 2016
Before GREGORY, Chief Judge, and WYNN and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas Clay Wilson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Clay Wilson seeks to appeal the magistrate judge’s
report recommending that the district court dismiss his civil
action without prejudice for failure to state a claim. After
Wilson filed his notice of appeal, the district court adopted
the magistrate judge’s recommendation and dismissed the action
without prejudice. Wilson has not filed an amended notice of
appeal.
This court may exercise jurisdiction only over final
orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and
collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P.
54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-
46 (1949). When a notice of appeal is premature, the entry of
final judgment can cure the resulting jurisdictional defect
under the doctrine of cumulative finality, but only if the order
appealed could have been certified for immediate appeal pursuant
to Rule 54(b). In re Bryson, 406 F.3d 284, 287-89 (4th Cir.
2005); Equip. Fin. Grp. v. Traverse Computer Brokers, 973 F.2d
345, 347 (4th Cir. 1992).
The report and recommendation Wilson seeks to appeal is
neither a final order nor an appealable interlocutory or
collateral order. See Haney v. Addison, 175 F.3d 1217, 1219
(10th Cir. 1999). Because the district court could not have
certified the report and recommendation for immediate appeal
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under Rule 54(b), the cumulative finality doctrine does not
apply.
Accordingly, we dismiss the appeal for lack of
jurisdiction. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
DISMISSED
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