Stafford v. Barbaro

127 F. App'x 354

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2005
• Docket: No. 04-35418
• Status: Published

Opinion

MEMORANDUM

**

Neil B. Stafford appeals pro se the dismissal on screening of his 42 U.S.C. § 1983 action by a United States Magistrate Judge. We consider sua sponte the question of our jurisdiction to hear this appeal, see In re Marriage of Nasca, 160 F.3d 578, 579 (9th Cir.1999), and conclude that we lack jurisdiction and order the matter transferred.

Stafford filed a section 1983 complaint and a motion to proceed in forma pauperis, and pursuant to 28 U.S.C. § 1915(d), the magistrate judge sua sponte dismissed the action as frivolous. There was no clear and unambiguous expression of consent by all the parties to magistrate judge jurisdiction and, for this reason, the magistrate judge lacked authority to enter a final order in this case. See Aldrich v. Bowen, 130 F.3d 1364,1365 (9th Cir.1997).

Rather than dismiss this appeal for lack of jurisdiction, however, we transfer the matter in the interests of justice pursuant to 28 U.S.C. § 1631 to the district court for further proceedings. See Tripati v. Rison, 847 F.2d 548, 548-49 (9th Cir.1988) (order) (per curiam).

Al pending motions are denied.

TRANSFER ORDERED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.