Unpublished Dispositionvictoria Bolden, Plaintiff-appellant, v. Lima Technical College, et al., Defendants-appellees, 782 F.2d 1041 (6th Cir. 1985)

The plaintiff appeals an order denying her motion for appointment of counsel and leave to file a Title VII action in forma pauperis. The appeal was referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. For the reasons that follow, we find we have no appellate jurisdiction to review the order below.

After receiving a right-to-sue letter from the Equal Employment Opportunity Commission, the plaintiff attempted to initiate a Title VII action in the district court by filing a motion for appointment of counsel and for leave to proceed therein in forma pauperis. The Magistrate denied that motion on grounds the plaintiff had not filed the action within 90 days of the right-to-sue letter and, in fact, had never filed a complaint at all. In an effort to show she had filed the above motion within 90 days of receiving the right-to-sue letter, the plaintiff submitted to the district court the envelope which had contained the letter. The Magistrate viewed the envelope as confirming his prior holding and denied reconsideration. The plaintiff then filed a notice of appeal, seeking to appeal the Magistrate's orders to this Court. She also filed a motion for leave to proceed on appeal in forma pauperis. The district court construed the latter motion as one to set aside the Magistrate's orders and denied relief on the same grounds noted by the Magistrate.

Absent a clear and unambiguous statement in the record indicating the parties consented to the Magistrate's exercise of plenary jurisdiction in an action, an order entered by a Magistrate cannot be appealed to this Court. Ambrose v. Welch, 729 F.2d 1084, 1085 (6th Cir. 1984); Whitehead v. Califano, 596 F.2d 1315, 1319 n.3 (6th Cir. 1979). No such statement is found in the record in this appeal. Although the district court, subsequent to the notice of appeal, did review the Magistrate's order, the plaintiff did not attempt to appeal that order. The only notice of appeal filed failed to give this Court any jurisdiction to appeal the denial of counsel or pauper status in the action below. Therefore,

It is ORDERED that this appeal be and it hereby is dismissed for lack of appellate jurisdiction. Rule 9(d) (1), Rules of the Sixth Circuit.