Donald E. Martin v. Warden of Greensville Correctional Center Mrs. Rawls, Unit Technician, 64 F.3d 658, 4th Cir. (1995)
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Scribd Government DocsDonald E. Martin v. Warden of Greensville Correctional Center Mrs. Rawls, Unit Technician, 64 F.3d 658, 4th Cir. (1995)
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Scribd Government Docs64 F.
3d 658
NOTICE: Fourth Circuit Local Rule 36(c) states that citation
of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
Donald E. MARTIN, Plaintiff--Appellant,
v.
WARDEN OF GREENSVILLE CORRECTIONAL CENTER;
Mrs. Rawls, Unit
Technician, Defendants--Appellees.
No. 95-6915.
United States Court of Appeals, Fourth Circuit.
Submitted: July 27, 1995.
Decided: August 22, 1995.
Donald E. Martin, Appellant Pro Se. Mary Elizabeth Shea, Office of the
Attorney General of Virginia, Richmond, Virginia, for Appellees.
Before ERVIN, Chief Judge, MOTZ, Circuit Judge, and PHILLIPS,
Senior Circuit Judge.
PER CURIAM:
Appellant petitions pursuant to 28 U.S.C. Sec. 636(c)(5) (1988) for leave to
appeal a decision of the district court affirming the magistrate judge's dismissal
of Appellant's 42 U.S.C. Sec. 1983 (1988) complaint.* Because Appellant has
failed to present a substantial question of law for review, we dismiss the
petition for leave to appeal. See Adams v. Heckler, 794 F.2d 303, 309 (7th
Cir.1986) (holding that petitions for leave to appeal under 28 U.S.C. Sec.
636(c)(5) should only be granted in cases involving substantial and important
questions of law); Wolff v. Wolff, 768 F.2d 642, 647 (5th Cir.1985) (same).
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not
aid the decisional process.
2
DISMISSED.
The parties consented to the jurisdiction of the magistrate judge with appeal to
the district court. See 28 U.S.C. Sec. 636(c)(4). In these circumstances, the
final judgment entered on the district court's decision "may be reviewed by the
appropriate United States Court of Appeals upon petition for leave to appeal by
a party stating specific objections to the judgment." 28 U.S.C. Sec. 636(c)(5);
see Fed. R.App. P. 5.1(a). Appellant filed a notice of appeal, which does not
satisfy this requirement. See Adams v. Heckler, 794 F.2d 303, 308 (7th
Cir.1986); Moore McCormack Lines, Inc. v. International Terminal Operating
Co., 784 F.2d 1542, 1544 (2d Cir.1986). The defect is not jurisdictional,
however, and we have discretion to treat Appellant's notice of appeal as a
petition for leave to appeal. See Moore McCormack Lines, Inc., 784 F.2d at
1545. We have done so
