Holmes v. Park

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 20, 1999
• Docket: 99-60336
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60336 Conference Calendar

HARVEY DEAN HOLMES,

Plaintiff-Appellant,

versus

GREGORY PARK,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 2:98-CV-214-B --------------------

December 16, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Harvey Dean Holmes, prisoner # 10599-042, seeks to appeal

the dismissal of his civil action for damages against Gregory

Park, the Federal Public Defender who represented him in his

criminal proceedings.

We must examine the basis of our jurisdiction, sua sponte,

if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-60336 -2-

1987). Holmes filed a notice of appeal from a final judgment

entered by a magistrate judge. A magistrate judge’s authority to

act on civil matters is described in 28 U.S.C. § 636. In a case

in which the parties have not consented to proceed before the

magistrate judge, a magistrate judge may determine pretrial

matters, conduct evidentiary hearings, and file proposed findings

and recommendations. Jones v. Johnson, 134 F.3d 309, 310 (5th

Cir. 1998); 28 U.S.C. § 636(b)(1)(A-C). This case was never

referred to the magistrate judge pursuant to 28 U.S.C.

§ 636(b)(1). There was no consent to proceed before the

magistrate judge pursuant to § 636(c). There is nothing in the

record to indicate by what authority the magistrate judge

dismissed this civil action for damages. The case never went

before a federal district court judge at any time. The

magistrate judge’s judgment is not a final appealable judgment.

Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir. 1984).

We are without jurisdiction to consider this case. The

appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.