Albert Charles Burgess, Jr., Plaintiff-appellant, v. Lee Grant, Defendant-appellee, 927 F.2d 595 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 927 F.2d 595 (4th Cir. 1991) Submitted Feb. 4, 1991. Decided Feb. 27, 1991

Appeal from the United States District Court for the District of South Carolina, at Florence. Charles W. Gambrell, United States Magistrate Judge. (CA-90-1777-0-4)

Albert Charles Burgess, Jr., appellant pro se.





Albert Charles Burgess, Jr. appeals the magistrate judge's denial of his motion that Magistrate Judge Gambrell recuse himself. Burgess appealed the order to the district court, but the district court interpreted this filing as an appeal to our Court and forwarded the record accordingly. We dismiss the appeal for lack of jurisdiction.

The decisions of a magistrate judge may not be appealed directly to this Court unless the parties consented to have a magistrate judge conduct all proceedings pursuant to 28 U.S.C. § 636(c) (1). Otherwise, if a party is dissatisfied with the magistrate judge's ruling, the proper procedure is to appeal to the district court. Gleason v. Secretary of Health and Human Services, 777 F.2d 1324 (8th Cir. 1985); Geany v. Carlson, 776 F.2d 140 (7th Cir. 1985); Ambrose v. Welch, 729 F.2d 1084, 1085 (6th Cir. 1984); Trufant v. Autocon, Inc., 729 F.2d 308 (5th Cir. 1984); Alaniz v. California Processors, Inc., 690 F.2d 717, 720 (9th Cir. 1982).

There is no evidence that the parties in this case are proceeding under Sec. 636(c) (1), and the magistrate judge's order is not appealable to this Court. Burgess's appeal of the magistrate judge's order was properly directed to the district court pursuant to Fed. R. Civ. P. 72(a), and the district court should have interpreted this filing as an objection to a magistrate judge's order under 28 U.S.C. § 636(b) (1) (A). 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.