In Re John Rodgers Burnley, Petitioner-appellant, 946 F.2d 884 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 946 F.2d 884 (4th Cir. 1991) Submitted March 25, 1991. Decided Oct. 23, 1991

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. David G. Lowe, Magistrate Judge. (CA-91-40-A-R)

John Rodgers Burnley, appellant pro se.

E.D. Va.


Before MURNAGHAN and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.



John Rodgers Burnley appeals from the magistrate judge's order denying his motion to voluntarily dismiss certain of his 42 U.S.C. § 1983 complaints. Although these complaints have apparently been filed and are pending before the district court, they are not under active consideration, subject to a pre-filing review system order. Because this appeal is not properly before us, 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). Absent this consent, 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). Since the district court has not begun active consideration of the cases Burnley moves to dismiss, it is clear that the cases are not proceeding under § 636(c) (1). Consequently, the magistrate judge's order is not appealable to this Court.

Accordingly, we deny Burnley's motion to proceed on appeal in forma pauperis and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are ade quately presented in the materials before the Court and argument would not aid the decisional process.