Berthal Crouch, Plaintiff-appellant, v. Richard L. Hinton, Defendant-appellee, 956 F.2d 268 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 956 F.2d 268 (6th Cir. 1992) Feb. 25, 1992

Before RYAN and SUHRHEINRICH, Circuit Judges, and CHURCHILL, Senior District Judge.* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the documents before the court reveals that the magistrate judge recommended that plaintiff's civil rights action filed under 42 U.S.C. § 1983 be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d) by report and recommendation entered on October 30, 1991. Plaintiff filed a notice of appeal ostensibly taken from the judgment of the district court on November 7, 1991, before the district court considered the magistrate judge's report and recommendation and dismissed the action by order entered November 25, 1991. Plaintiff has not appealed the November 25, 1991, order.

Upon consideration, we conclude that this appeal must be dismissed. Generally, an order or report and recommendation entered by a magistrate judge is not final and appealable unless the magistrate judge has been given plenary jurisdiction by the district court and by the consent of the parties under 28 U.S.C. § 636(c) (1). Ambrose v. Welch, 729 F.2d 1084, 1085 (6th Cir. 1984) (per curiam). Here, plenary jurisdiction was not given the magistrate judge; the report and recommendation therefore is not final and appealable. As noted, plaintiff has not appealed the final judgment entered by the district court.

Accordingly, the appeal is hereby dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.

 *

The Honorable James P. Churchill, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation