Earl Clinton Davidson, Plaintiff-appellant, v. R.a. Edwards, Jr., M.d.; Dr. A. Lumapas; Doctor Bora,defendants-appellees, 948 F.2d 1280 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 948 F.2d 1280 (4th Cir. 1991) Submitted Oct. 28, 1991. Decided Nov. 13, 1991

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Charles H. Haden, II, Chief District Judge. (CA-91-431-3)

Earl Clinton Davidson, appellant pro se.

Janet Elizabeth James, West Virginia Department of Health & Human Resources, Charleston, W.Va., for appellees.

S.D.W. Va.

DISMISSED.

Before ERVIN, Chief Judge, SPROUSE, Circuit Judge, and CHAPMAN, Senior Circuit Judge.

OPINION

PER CURIAM:


Earl Clinton Davidson appeals from the magistrate judge's report and recommendation which concluded that Davidson's civil complaint should be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d) (1988). We dismiss the appeal for lack of jurisdiction.

Davidson filed his notice of appeal following the entry of the magistrate judge's recommendation but prior to the district court's order dismissing his action. The decisions of a magistrate judge may not be appealed directly to this Court unless the parties have consented to have a magistrate judge conduct all proceedings pursuant to 28 U.S.C.A. § 636(c) (1) (West 1968 & Supp.1991). 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 Servs., 777 F.2d 1324 (8th Cir. 1985).

There is no evidence in this case that the parties consented to the magistrate judge's jurisdiction under § 636(c) (1); consequently the magistrate judge's order is not appealable to this Court.*  We therefore 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 the Court and argument would not aid the decisional process.

DISMISSED.

 *

Because the district court stated that it had reviewed the record de novo, a possible interpretation of the record is that the district court treated the notice of appeal as an objection to the magistrate judge's recommendation rather than as a notice of appeal. If so, there was no valid notice of appeal filed from the district court's order to give this Court appellate jurisdiction