Leon Lee Smith, Sr. v. State of California

981 F.2d 1259 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Leon Lee SMITH, Sr., Plaintiff-Appellant, v. STATE OF CALIFORNIA, et al., Defendants-Appellees. No. 92-15832. United States Court of Appeals, Ninth Circuit. Submitted Nov. 23, 1992.* Decided Dec. 11, 1992. Before SCHROEDER, FLETCHER and NOONAN, Circuit Judges. — 1 — MEMORANDUM** — 2 — Leon Lee Smith, Sr., a California state prisoner, appeals pro se the magistrate judge's sua sponte dismissal of his 42 U.S.C. § 1983 action with prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to comply with a court order to amend the complaint. Title 28 U.S.C. § 1291 provides for appellate jurisdiction over "final decisions of the district courts of the United States." McCright v. Santoki, 976 F.2d 568, 570 (9th Cir.1992) (per curiam). — 3 — "Article III of the United States Constitution imposes limitations upon the role which the magistrates, who are not Article III judges vested with life tenure or salary protections, can play.... [W]ith respect to dispositive matters, a magistrate is only permitted to make recommendations for final disposition by an Article III judge...." See McKeever v. Block, 932 F.2d 795, 798 (9th Cir.1991). — 4 — Here, there is no final appealable order because the district court did not approve and adopt the magistrate judge's order and because the parties did not consent to proceeding before a magistrate judge, pursuant to 28 U.S.C. § 636(c). See id. Therefore, this court lacks jurisdiction to hear Smith's appeal. — 5 — DISMISSED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Therefore, Smith's request for oral argument is denied [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3