Joseph G. Sagone, Plaintiff-appellant, v. Florence County Detention Center; City/county Buildingcommission; Billy Askins; John Lambert; Vivianlewis; Clyde Mixon, Defendants-appellees, 57 F.3d 1067 (4th Cir. 1995)

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US Court of Appeals for the Fourth Circuit - 57 F.3d 1067 (4th Cir. 1995) Submitted: April 28, 1995. Decided: June 14, 1995

Joseph G. Sagone, Appellant Pro Se.

William Henry Davidson, II, David Leon Morrison, ELLIS, LAWHORNE, DAVIDSON, SIMS, MORRISON & SOJOURNER, P.A., Columbia, SC, for Appellees.

Before WILKINS and MOTZ, Circuit Judges, and SPROUSE, Senior Circuit Judge.


Appellant has appealed from the district court's order granting partial summary judgment in favor of Defendants in his 42 U.S.C. § 1983 (1988) action* . Appellant moved the district court to vacate his notice of appeal. The magistrate judge granted the motion. Because the appeal by that time was docketed in this Court, however, the magistrate judge lacked jurisdiction to dismiss the appeal, and the order vacating the notice of appeal is of no effect. See Fed. R. App. P. 42(a); United States v. Clark, 917 F.2d 177, 179 (5th Cir. 1990); United States v. Hitchmon, 602 F.2d 689, 692 (5th Cir. 1979) ("After the appeal is docketed, dismissal may be effected only in the court of appeals.").

We must now dismiss the appeal for lack of jurisdiction, however, because the order is not appealable. This Court may exercise 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 Corp., 337 U.S. 541 (1949). The order here appealed is neither a final order nor an appealable interlocutory or collateral order.

We dismiss the appeal as interlocutory. 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.



Appellant noted his appeal from the district court's order granting summary judgment on all of his claims. However, by a subsequent order entered after Appellant noted his appeal and after this Court docketed the appeal, the district court altered its disposition to grant only partial summary judgment