919 F2d 141 Reneer v. Samberg
919 F.2d 141
John E. RENEER, Plaintiff-Appellant,
Mike SAMBERG, et al., Defendants-Appellees.
United States Court of Appeals, Sixth Circuit.
Dec. 3, 1990.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before DAVID A. NELSON and RYAN, Circuit Judges, and LIVELY, Senior Circuit Judge.
This matter is before the court upon consideration of appellant's motion for miscellaneous relief filed August 17, 1990.
A review of the documents before the court indicates that the final judgment of the district court was entered March 29, 1990. On April 13, 1990, appellant filed in the district court a motion for leave to file out of time his tendered motion to amend the judgment of the district court. It is impossible to determine from the documents before this court whether such Fed.R.Civ.P. 59(e) motion to amend was served upon counsel or given to prison authorities for mailing within the ten-day period as calculated pursuant to Fed.R.Civ.P. 6(a). See Houston v. Lack, 487 U.S. 266, 272-73 (1988); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988). The motion to file the motion was denied by magistrate King on May 15, 1990, and the parties were advised that reconsideration of the May 15 order could be sought pursuant to 28 U.S.C. Sec. 636(b)(1)(A). Appellant on May 24, 1990, filed a motion to reconsider the magistrate's order and on June 12, 1990, filed a notice of appeal from the May 15, 1990, order.
An order of a magistrate is not appealable to this court unless the magistrate is given plenary jurisdiction pursuant to 28 U.S.C. Sec. 636(c)(1). Tripati v. Rison, 847 F.2d 548, 548-49 (9th Cir.1988) (per curiam); McGraw v. Connelly (In re Bell & Beckwith), 838 F.2d 844, 848 n. 5 (6th Cir.1988). Plenary jurisdiction was not given in this case. The action is still pending in the district court. The magistrate's order of May 15, 1990, denying leave to file the motion to amend is being reconsidered by the district court.
Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.