Larry Cooper v. United States Marshal, Sheriff Shelby County

815 F.2d 702 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Larry COOPER, Plaintiff-Appellant, v. UNITED STATES MARSHAL, SHERIFF SHELBY COUNTY, Defendant-Appellee. No. 87-5053. United States Court of Appeals, Sixth Circuit. March 25, 1987. Before KRUPANSKY, NELSON and BOGGS, Circuit Judges. ORDER [1] Appellant appeals from an order entered by the magistrate which denied appellant's motion to have the magistrate remove himself from the proceedings in the district court. [2] There is no indication in the record that the action was to be tried to the magistrate by the consent of the parties. 28 U.S.C. Sec. 636(c)(1) and (3) requires such consent before an appeal is properly prosecuted to this Court. Without the requisite consent, the order entered by the magistrate in this case cannot be appealed to this Court. Ambrose v. Welch, 729 F.2d 1084 (6th Cir.1984). Even if consent had been given under 28 U.S.C. Sec. 636(c)(1) and (3), an order denying a motion to remove a judge is not appealable until final judgment. City of Cleveland v. Krupansky, 619 F.2d 576, 578 (6th Cir.), cert. denied, 449 U.S. 834 (1980). [3] Accordingly, this appeal is dismissed.