Robert Koon, Plaintiff-appellant, v. Joe Wallace; Bill Blanton; Harry Kline; John Q. Little;state of South Carolina, Defendants-appellees.robert Koon, Plaintiff-appellant, v. Parker Evatt; Bill Wallace, Warden; Joyce E. Brown;george Patton; Randy Gamble, I.r.c.; Sargeant Dean; R.cannup, Officer; Richard Smythe; Deborah Still; Officerjackson, Defendants-appellees.robert Koon, Plaintiff-appellant, v. Richard S. Lindler, Warden; Phillip Mcleod; B. J. Stewart,sargeant; Leroy Cartledge, Defendants-appellees, 977 F.2d 572 (4th Cir. 1992)Annotate this Case
Appeals from the United States District Court for the District of South Carolina, at Columbia.
Robert Koon, Appellant Pro Se.
DISMISSED IN PART AND AFFIRMED AS MODIFIED IN PART.
Before HALL, WILKINS, and LUTTIG, Circuit Judges.
Robert Koon filed two notices of appeal in three separate 42 U.S.C. § 1983 (1988) complaints. Koon first appeals from the magistrate judge's denial of his motions to waive the partial filing fee in all three cases. This Court has jurisdiction only over final orders, 28 U.S.C. § 1291 (1988), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (1988); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Inc., 337 U.S. 541 (1949). Absent consent of the parties or grant of final authority by the district court, a magistrate judge's order is not a final order prior to review by the district court. Colorado Bldg. Constr. & Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989); Unites States v. Flaherty, 668 F.2d 566, 585 (1st Cir. 1981). Thus, Koon's appeals from the magistrate judge's orders are interlocutory.
Koon also appeals from the district court's orders dismissing his three complaints for failure to pay the partial filing fees. The district court's orders failed to state whether the dismissals were with or without prejudice. An involuntary dismissal upon nonjurisdictional grounds is presumed to be with prejudice, Fed. R. Civ. P. 41(b), but because dismissal with prejudice is inappropriate where the ground for dismissal is failure to pay the partial filing fee, we modify the district court's orders to reflect that the dismissals are without prejudice. Our review of the record and the district court's opinions discloses that, with this exception, the appeals are without merit. Accordingly, we grant leave to proceed in forma pauperis on appeal and affirm on the reasoning of the district court in all other respects. Koon v. Wallace, Nos. CA-92-44-3-2, CA-92-45-3-2, CA-92-46-3-2 (D.S.C. Mar. 25 and May 14, 1992). 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 IN PART AND AFFIRMED AS MODIFIED IN PART