Riccardo Jones v. Sgt. Riggs

Filing 920090109

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Dismissed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 judge's order Darnell his Jones motion appeals for from the magistrate injunction.

denying

preliminary

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. 416-18 (9th Cir. 1992). record showing that the See Reynaga v. Cammisa, 971 F.2d 414, In this case, we find nothing in 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). remand to the district Accordingly, we dismiss this appeal and court for 2 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 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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