Kelvin Stephens v. Homewood Suites

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 20, 2023
• Docket: 23-13767
• Status: Unpublished

Opinion

USCA11 Case: 23-13767 Document: 10-1 Date Filed: 12/20/2023 Page: 1 of 2

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-13767 Non-Argument Calendar ____________________

KELVIN B. STEPHENS, Plaintiff-Appellant, versus HOMEWOOD SUITES,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:23-cv-03273-MHC ____________________ USCA11 Case: 23-13767 Document: 10-1 Date Filed: 12/20/2023 Page: 2 of 2

2 Opinion of the Court 23-13767

Before WILSON, JILL PRYOR, and GRANT, Circuit Judges. PER CURIAM: This appeal is DISMISSED, sua sponte, for lack of jurisdic- tion. Kelvin Stephens, proceeding pro se, appeals first from a mag- istrate judge’s report and recommendation (“R&R”) recommend- ing that his case be dismissed without prejudice for failure to com- ply with a court order. We lack jurisdiction to review the R&R because it was not rendered final by the district judge at the time Stephens filed his notice of appeal. See 28 U.S.C. §§ 636(b)(1), 1291; Perez-Priego v. Alachua Cnty. Clerk of Ct., 148 F.3d 1272, 1273 (11th Cir. 1998). Stephens also appeals, via an amended notice of appeal, from the district judge’s November 22, 2023 order denying his ap- plication to proceed in forma pauperis (“IFP”) on appeal. Such rul- ings are not appealable, as the proper procedure is to file in the ap- pellate court a motion to proceed IFP on appeal. See Fed. R. App. P. 24(a)(5); Gomez v. United States, 245 F.2d 346, 347 (5th Cir. 1957). We thus also lack jurisdiction to review that order. All pending motions are DENIED as moot. No petition for rehearing may be filed unless it complies with the timing and other requirements of 11th Cir. R. 40-3 and all other applicable rules.