Latory Middleton v. John Emerson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cv-02535-DCN. Copies to all parties and the district court/agency. [998812445]. Mailed to: Latory Middleton. [11-2288]

Appeal: 11-2288

Document: 8

Date Filed: 03/19/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2288

LATORY SHANON MIDDLETON,
Plaintiff – Appellant,
v.
JOHN EMERSON; KASSI B. SANDIFER,
Defendants - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:11-cv-02535-DCN)

Submitted:

March 15, 2012

Decided:

March 19, 2012

Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Latory Shanon Middleton, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-2288

Document: 8

Date Filed: 03/19/2012

Page: 2 of 3

PER CURIAM:
Latory

Shanon

Middleton

filed

a

document

in

the

district court that she captioned “Notice of Removal,” but that
otherwise

appeared

to

be

a

complaint

alleging

discrimination in violation of federal law.
two individuals as defendants.

employment

The document named

The magistrate judge, noting

that Middleton was a plaintiff in a pending state proceeding,
correctly

pointed

out

that

under

the

applicable

federal

statutes, a plaintiff may not remove a proceeding to federal
court.

28 U.S.C. §§ 1441(a), 1446(a) (2006).

The magistrate

judge then observed that, construing Middleton’s filing as a
complaint of employment discrimination under federal law, the
filing
remedies

failed
or

to

to
name

demonstrate

exhaustion

Middleton’s

employer

of
as

administrative

defendant.

The

magistrate judge therefore recommended dismissing the complaint
without prejudice.
Middleton, informed of the need to file objections to
the

magistrate

judge’s

report,

made

a

timely

filing

which,

although fairly general, did provide some evidence that she may
have

exhausted

administrative

remedies.

The

district

court,

after a de novo review, adopted the report of the magistrate
judge and dismissed the complaint without prejudice.
seeks to appeal.

2

Middleton

Appeal: 11-2288

Document: 8

Date Filed: 03/19/2012

Page: 3 of 3

Because the deficiencies in the complaint identified
by the magistrate judge could be remedied by the filing of an
amended complaint, we conclude that the district court’s order
is

neither

a

final

collateral order.

order

nor

an

appealable

interlocutory

or

See Domino Sugar Corp. v. Sugar Workers Local

Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993).

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

the

court

and

argument would not aid the decisional process.

DISMISSED

3