791 F. 2d 932 - Mildred Dunham v. Lucas County Welfare Department
791 F2d 932 Mildred Dunham v. Lucas County Welfare Department
791 F.2d 932
MILDRED DUNHAM, Plaintiff-Appellant,
v.
LUCAS COUNTY WELFARE DEPARTMENT; BOARD OF COMMISSIONERS OF
LUCAS COUNTY; GEORGE J. STEGER; JAMES M. HOLZEMER;
RAY KEST; FRANCIS E. SZOLLOSI,
Defendants-Appellees.
85-4000
United States Court of Appeals, Sixth Circuit.
4/18/86
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
DISMISSED
N.D.Ohio
ORDER
BEFORE: MERRITT, JONES and KRUPANSKY, Circuit Judges.
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This matter is before the Court for consideration of appellee's motion to dismiss the appeal. Appellant has responded in opposition thereto.
On March 28, 1985, this Court dismissed a previous appeal of appellant in which she attempted to appeal a decision of the magistrate in favor of appellees on her claims under 42 U.S.C. Secs. 1981, 1983 and 2000 et seq.. The basis for this Court's previous dismissal was that appellant had consented to the magistrate's plenary jurisdiction with an appeal to the district court. Thereafter, appellant prosecuted an appeal in the district court which resulted in an opinion and order of the district court entered October 24, 1985, affirming the magistrate's decision and dismissing the case. On November 26, 1985, appellant filed a notice of appeal.
The consent form, signed by appellant's attorney, clearly indicates that appellant consented to the magistrate's jurisdiction with an appeal to the district court. According to the provisions of the Federal Magistrate's Act, an appeal may be prosecuted to this Court only by a petition for leave to appeal. 28 U.S.C. Sec. 636(C). Appellee correctly points out that appellant has not petitioned this Court as required. See Rule 73(d), Federal Rules of Civil Procedure.
We note that construing the notice of appeal as a petition for leave to appeal pursuant to 28 U.S.C. 636(c)(5) would fail to preserve appellant's appeal. Penland v. Warren County jail, 759 F.2d 524 (6th Cir. 1985). Penland, supra, requires: (1) a copy of the statement in which the parties consented to the exercise of plenary jurisdiction by the magistrate and to have the appeal as a right lie to the district court; (2) a concise statement of the case containing facts material to the questions presented; (3) a statement of specific objections to the judgment and a concise argument relating to each objection; and (4) an appendix containing the district court Docket Sheet, copies of the final judgments of the district court and the magistrate, copies of opinions rendered with the judgments and a copy of any part of the record referred to in the petition. Appellant failed to meet any of these requirements.
For the foregoing reasons, it is ORDERED that the motion to dismiss be granted.