James E. Hopper, Plaintiff Appellant, v. Pneumafil Corporation, Defendant Appellee, 35 F.3d 556 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 35 F.3d 556 (4th Cir. 1994) Sept. 9, 1994

Appeal from the United States District Court for the Western District of North Carolina, at Shelby. J. Toliver Davis, Magistrate Judge. (CA-94-106-4).

James E. Hopper, appellant Pro Se.



Before NIEMEYER and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.


James Hopper filed an action in district court against his employer, Pneumafil Corporation. The complaint was referred to the magistrate judge, who granted in forma pauperis status but recommended to the district court that the case be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d) (1988). The recommendation of the magistrate judge contained language advising Hopper that written objections to the report must be filed within ten days of service, pursuant to 28 U.S.C. § 636(b) (1) (C); Fed. R. Civ. P. 72(b). Within that time limit, Hopper filed a notice of appeal.

This Court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (1988), and certain interlocutory orders. 28 U.S.C. § 1292 (1988); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). The magistrate judge's report is not such an order. However, giving Hopper's document a liberal construction, see Gordon v. Leeke, 574 F.2d 1147 (4th Cir.), cert. denied, 439 U.S. 970 (1978), we construe the notice of appeal as objections to the magistrate judge's report. We therefore dismiss the appeal, and remand the case to the district court with instructions to construe Hopper's notice of appeal as timely objections. We dispense with oral argument because the facts and legal argument would not aid the decisional process.