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Michael Antonio Livermon v. Michael D. Pinkerman, Deputy , 949 F.2d 396 ( 1991 )


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  • 949 F.2d 396

    NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
    Michael Antonio LIVERMON, Plaintiff-Appellant,
    v.
    Michael D. PINKERMAN, Deputy, Defendant-Appellee.

    No. 91-7108.

    United States Court of Appeals, Fourth Circuit.

    Submitted Nov. 20, 1991.
    Decided Dec. 12, 1991.

    Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. David G. Lowe, Magistrate Judge. (CA-90-128-R)

    Michael Antonio Livermon, appellant pro se.

    Conrad Moss Shumadine, Mark Douglas Stiles, Willcox & Savage, Norfolk, Va., for appellee.

    E.D.Va.

    REMANDED.

    Before DONALD RUSSELL, MURNAGHAN and SPROUSE, Circuit Judges.

    OPINION

    PER CURIAM:

    1

    Michael Antonio Livermon appeals from the magistrate judge's final order dismissing this civil rights complaint under 42 U.S.C. § 1983 (1988). This case was referred to the magistrate judge for an evidentiary hearing and a recommended disposition pursuant to 28 U.S.C.A. § 636(b)(1)(B) (Supp.1991). However, the parties did not consent to final disposition by the magistrate judge as required by 28 U.S.C.A. § 636(c). We remand.

    2

    Consent is "the linchpin of the constitutionality of [§ 636(c) ]." Adams v. Heckler, 794 F.2d 303, 307 (7th Cir.1986). Consent must be clearly and unambiguously stated; it cannot be inferred from the parties' conduct. Hall v. Sharpe, 812 F.2d 644, 646-47 (11th Cir.1987). Absent consent, we are without jurisdiction to entertain Livermon's appeal because the magistrate judge acted beyond the scope of his jurisdiction. See Gomez v. United States, 490 U.S. 858, 870 (1989); Lovelace v. Dall, 820 F.2d 223, 225 (7th Cir.1987).

    3

    We dispense with oral argument because the facts and legal contentions are adequately presented and argument would not aid the decisional process.

    4

    REMANDED.