Robinson Neblett Hatch, Plaintiff Appellant, v. Levester Thompson, M.d., Defendant Appellee,and Edward Murray, Director, Defendant, 39 F.3d 1176 (4th Cir. 1994)

Appellant noted an appeal from the magistrate judge's order dismissing his 42 U.S.C. § 1983 (1988) action with prejudice. The record discloses that the parties consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c) (1) (1988), with appeal first to a district judge. 28 U.S.C. § 636(c) (4). This Court reviews the propriety of the order only upon petition for leave to appeal pursuant to 28 U.S.C. § 636(c) (5); Fed. R. Civ. P. 73(d). Appellant has not filed such a petition. This appeal was erroneously directed to this Court rather than the district court. Accordingly, we remand the appeal with instructions that the district court construe the notice of appeal as a timely appeal to that court. 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.

REMANDED