46 F3d 1125 McCoy v. Evatt (Scdc)

46 F.3d 1125

Calvin MCCOY, Plaintiff-Appellant,
Parker EVATT, Commissioner (SCDC), Defendant-Appellee.

No. 94-7084.

United States Court of Appeals, Fourth Circuit.

Submitted Dec. 27, 1994.
Decided Jan. 17, 1995.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Calvin McCoy, Appellant Pro Se. Larry Cleveland Batson, Robert Eric Petersen, Barbara Murcier Bowens, SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Columbia, SC, for Appellee.

Before WILKINS and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.


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Calvin McCoy appeals from the magistrate judge's report and recommendation advising the district court to deny relief on McCoy's 42 U.S.C. Sec. 1983 (1988) complaint. We find that we lack jurisdiction to consider the appeal. Consequently, we dismiss.


McCoy's case was referred to the magistrate judge pursuant to 28 U.S.C.A. Sec. 636(b)(1)(B) (West 1993). The magistrate judge recommended that relief be denied and advised McCoy that failure to file objections to this recommendation within ten days could waive appellate review of a district court's order based on the recommendation. After twenty-five days, McCoy filed a notice of intent to appeal to this Court. The district court subsequently entered an order adopting the magistrate judge's recommendation and denying McCoy relief.


Unless the magistrate judge exercises jurisdiction under 28 U.S.C.A. Sec. 636(c) (West 1993), the parties may only appeal to the district court. Because the magistrate judge did not exercise jurisdiction under Sec. 636(c), this Court is without jurisdiction to consider McCoy's appeal. Ordinarily, this Court would remand the case and order the district court to construe the notice of appeal as objections to the magistrate judge's report and recommendation. However, a remand would be futile because the notice of appeal was not filed within the time for filing objections to the magistrate judge's report and recommendation.


Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal conten tions are adequately presented in the materials before the Court and argument would not aid the decisional process.