Opinion
21-4062
06-02-2021
CHRISTOPHER SIMMLER, Plaintiff - Appellant, v. SEAN D. REYES; TYSON G. DOWNEY; STATE OF UTAH, Defendants - Appellees.
(D.C. No. 2:19-CV-01009-RJS-JCB) (D. Utah)
Before McHUGH, MORITZ, and EID, Circuit Judges.
ORDER
Pro se plaintiff Christopher Simmler appealed a recommended disposition of the defendants' motion to dismiss and an interlocutory order entered by the magistrate judge addressing procedural matters related to the motion to dismiss. This court challenged the appellant to demonstrate appellate jurisdiction. 10th Cir. R. 27.3(B). The appellant filed a memorandum brief in response, in which he limited the scope of this appeal to the magistrate judge's recommendation on the defendants' motion to dismiss. Upon consideration of the district court record, the appellant's response, and the applicable law, we dismiss this appeal for lack of jurisdiction.
This court may exercise jurisdiction to review final decisions of the district courts, see 28 U.S.C. § 1291, and specific types of interlocutory and collateral orders not applicable here, see 28 U.S.C. § 1292; Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). Piecemeal review of interlocutory orders is generally not allowed. Southern Ute Indian Tribe v. Leavitt, 564 F.3d 1198, 1207 (10th Cir. 2009). Orders entered by magistrate judges not passed upon by district judges ordinarily are not appealable directly to this court. Phillips v. Beierwaltes, 466 F.3d 1217, 1222 (10th Cir. 2006).
Mr. Simmler seeks review of the magistrate judge's February 12, 2021 recommendation to grant the defendants' motion to dismiss the case. Mr. Simmler filed objections to the recommendation on March 24, 2021 and another set of objections on May 5, 2021. But the district judge has not addressed his objections, nor has he otherwise granted the defendants' motion to dismiss or dismissed the case. No final judgment has been entered to signal the end of the proceedings in the district court. See Fed. R. Civ. P. 58. Consequently, the district court case is not final and appealable at this time. See Riley v. Kennedy, 553 U.S. 406, 419 (2008) (describing final decisions as those that end the litigation on the merits and leave nothing for the court to do but execute the judgment).
Mr. Simmler's arguments in response to this court's jurisdictional challenge do not persuade us otherwise. The magistrate judge in this case lacks authority to dispose of the defendants' motion to dismiss because the parties have not consented to the magistrate judge presiding over the entire case. See 28 U.S.C. §§ 636(b)(1)(A) & 636(c). The federal statute establishing and limiting the authority of magistrate judges provides no time requirement within which a district judge must review a party's objections to a recommendation. See id. § 636(b). Indeed, the only time limit is on the parties to file objections to a recommendation. Id. § 636(b)(1)(C). Lastly, we know of no authority that converts a magistrate judge's recommendation into a final disposition of a district court based on the passage of time or any perceived delay in addressing a party's objections, nor did the appellant provide any.
In sum, we lack jurisdiction to consider this appeal, and the appeal is therefore dismissed. D&H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1444 (10th Cir. 1984) ("Jurisdiction to consider an appeal is not discretionary.").