64 F3d 656 Ebron v. Hampton City Jail

64 F.3d 656

Charles Edward EBRON, Plaintiff-Appellant,
v.
HAMPTON CITY JAIL; B.J. Roberts, Sheriff; Ronald J.
Angelone, Director, Defendants-Appellees.

No. 95-6265.

United States Court of Appeals, Fourth Circuit.

Submitted Aug. 1, 1995.
Decided Aug. 28, 1995.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Charles Edward Ebron, Appellant Pro Se. John Adrian Gibney, Jr., Bradley Brent Cavedo, Robert A. Dybing, SHUFORD, RUBIN & GIBNEY, Richmond, VA; Jill Theresa Bowers, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, VA, for Appellees.

Before NIEMEYER and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:


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1

Appellant Ebron appeals from the magistrate judge's order dismissing his 42 U.S.C. Sec. 1983 (1988) action. This case was before the magistrate judge on the consent of the original parties to the action pursuant to 28 U.S.C.A. Sec. 636(c) (West 1993). However, when Defendant Angelone was made an additional party to this case, consent to hear this case before the magistrate judge was never obtained from him. Because Defendant Angelone never consented to the jurisdiction of the magistrate judge, dispositive matters decided by the magistrate judge must be referred by the magistrate judge to the district court for approval.

2

Consent is "the linchpin of the constitutionality of 28 U.S.C. Sec. 636(c)," Adams v. Heckler, 794 F.2d 303, 307 (7th Cir.1986), and consent must be clearly and unambiguously stated. It cannot be inferred from the parties' conduct. Hall v. Sharpe, 812 F.2d 644, 646-47 (11th Cir.1987). Absent consent, we are without jurisdiction to entertain Ebron's appeal directly from a magistrate judge's order. See Gomez v. United States, 490 U.S. 858, 870 (1989); Lovelace v. Dall, 820 F.2d 223, 225 (7th Cir.1987). We therefore vacate and remand this case to the district 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.

VACATED AND REMANDED