Aurelio R. Lopez, Plaintiff-appellant, v. Ronald Fleck, George Kuzma, Gary Fletcher, Defendants-appellees, 43 F.3d 1479 (9th Cir. 1994)

MEMORANDUM^** 

Aurelio Lopez, a former Washington state prisoner, appeals pro se the district court's summary judgment in favor of prison officials in Lopez's 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs in violation of the Eighth Amendment. We raise sua sponte the issue of our jurisdiction over this appeal, see Abernathy v. Southern Cal. Edison, 885 F.2d 525, 527 (9th Cir. 1989), and transfer this case to the district court for further action.

The power of federal magistrate judges is limited by 28 U.S.C. § 636. Estate of Conners v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). A district judge may refer nondispositive pretrial matters to a magistrate judge for decision. 28 U.S.C. § 636(b) (1) (A) (1988); Estate of Conners, 6 F.3d at 658. A district judge may also authorize a magistrate judge to prepare findings and recommendations on dispositive matters for the district judge. 28 U.S.C. § 636(b) (1) (B) (1988); Reynaga v. Cammisa, 971 F.2d 414, 416 (9th Cir. 1992). However, a magistrate judge lacks authority to issue a dispositive order, unless the district court refers the matter to the magistrate judge and the parties consent to a decision by the magistrate judge. 28 U.S.C. § 636(c) (1) (1988); Estate of Conners, 6 F.3d at 658-59; Tripati v. Rison, 847 F.2d 548 (9th Cir. 1988).

Here, the district court referred the case to the magistrate judge but the parties did not consent to the magistrate judge's exercise of jurisdiction over the case. The magistrate judge entered a final order disposing of the defendants' and Lopez's summary judgment motions rather than issuing findings and recommendations to the district judge as required by 28 U.S.C. § 636(b) (1) (B). Absent the consent of the parties, the magistrate judge was not authorized to enter a dispositive order granting defendants' motion for summary judgment. See 28 U.S.C. § 636(c) (1); Tripati, 847 F.2d at 549. Accordingly, we lack jurisdiction to review the magistrate judge's order. See Id. In the interests of justice, however, we transfer this matter to the district court for vacation of judgment and further action. See 28 U.S.C. § 1631; Tripati, 847 F.2d at 549.¹ 

TRANSFERRED.