Ralph Smith v. Patricia Watson
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for transcript at government expense [999259787-2] Originating case number: 3:13-cv-00532-JRS Copies to all parties and the district court/agency. [999308792]. Mailed to: Ralph Smith. [13-7858]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7858
RALPH SMITH,
Plaintiff - Appellant,
v.
PATRICIA T. WATSON, Commonwealth’s Attorney,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:13-cv-00532-JRS)
Submitted:
February 27, 2014
Decided:
March 5, 2014
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ralph Smith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Ralph
Smith
seeks
to
appeal
from
the
magistrate
judge’s order requiring him to pay a partial filing fee or state
under penalty of perjury that he does not have sufficient assets
to pay such a fee.
Smith filed his notice of appeal prior to
the entry of the district court’s order on December 12, 2013,
dismissing
his
action
without
prejudice
for
disregarding
the
magistrate judge’s directives.
We 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–
47
(1949).
When
a
notice
of
appeal
is
premature,
the
jurisdictional defect can be cured if the district court enters
a final judgment prior to our consideration of the appeal under
the doctrine of cumulative finality.
Equip. Fin. Grp., Inc. v.
Traverse Computer Brokers, 973 F.2d 345, 347–48 (4th Cir. 1992).
Not all premature notices of appeal, however, are subject to the
cumulative finality rule.
Instead, this doctrine applies only
if the appellant appeals from an order the district court could
have certified for immediate appeal under Fed. R. Civ. P. 54(b).
In re Bryson, 406 F.3d 284, 287–89 (4th Cir. 2005).
Appeals
from “clearly interlocutory decision[s]” cannot be saved under
2
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cumulative
Filed: 03/05/2014
finality.
Id.
Pg: 3 of 3
at
288
(internal
quotation
marks
omitted).
The magistrate judge’s order is not a final order of
the district court and is not appealable under the collateral
order exception to the final judgment rule.
The order also is
not one of the orders subject to appeal under 28 U.S.C. § 1292.
Further, because the district court could not have certified the
order
for
immediate
appeal
finality rule cannot apply.
under
Rule
54(b),
the
cumulative
Accordingly, we deny Smith’s motion
for a transcript at government expense and 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
3
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