Ritter v. Cook

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 11, 2002
• Docket: 01-10723
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 01-10723

(Summary Calendar) _________________

SCOTT ROMAINE RITTER,

Plaintiff - Appellant,

versus

FNU COOK, Assistant Warden; FNU EASON, Assistant Warden; FNU OLIVER, Major; FNU THOMAS, Major; EMILY DOAN, Classification Committee; FNU COFFMAN, Classi fication Committee; KELLY B STRONG, Administrative Assistant; STEVEN PECK, Dr; ADEL NAFRAWI, Dr; JACK CALHOUN, Dr; BOB PREWIT, Health Administrator; WAYNE SCOTT, Director; GARY JOHNSON, Director Texas Department of Criminal Justice - Institutional Division; FNU BOUNDS, LVN; FNU WILLS, Ms; FNU DUKE, Senior Warden,

Defendants - Appellees.

Appeal from the United States District Court For the Northern District of Texas USDC No. 1:00-CV-290

July 8, 2002

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges. PER CURIAM:*

Scott Romaine Ritter, a Texas prisoner (# 731209), appeals from the magistrate judge’s order

denying his motion for a temporary restraining order (“TRO”) and preliminary injunction, in this 42

U.S.C. § 1983 civil rights action. The magistrate judge denied the motion even though none of the

defendants had formally consented to have the magistrate judge dispose of such motions.

An order denying a TRO is not appealable, see Faulder v. Johnson, 178 F.3d 741, 742 (5th

Cir. 1999), but the denial of a preliminary injunction ordinarily is appealable immediately.

See Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991); 28 U.S.C. § 1292(a)(1).

If necessary, this court must sua sponte examine the magistrate judge’s jurisdiction. See

Withrow v. Roell, 288 F.3d 199, 200 (5th Cir. 2002). Because the magistrate judge had not obtained

consent from all parties to rule on Ritter’s motion for a preliminary injunction, the magistrate judge

was without jurisdiction to issue a dispositive order on that motion. See Withrow, 288 F.3d at 204-

205 (holding that magistrate judge must secure consent of all parties before acting pursuant to 28

U.S.C. § 636(c)). Although we acknowledge that the magistrate judge did not have the benefit of

our decision in Withrow, we must VACATE and REMAND this case for further proceedings

consistent with this opinion.

VACATED AND REMANDED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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