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Claxton v. Lewis

*fn* submitted: May 25, 1993.

RICHARD WILLIAM CLAXTON, PLAINTIFF-APPELLANT,
v.
SAMUEL A. LEWIS, DIRECTOR, DEPARTMENT OF CORRECTIONS; ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Arizona. D.C. NO.CV-92-00770-RGS(S). Roger G. Strand, District Judge, Presiding

Before: Hug, Wiggins, and Thompson, Circuit Judges.

MEMORANDUM

Richard William Claxton, an Arizona state prisoner, appeals pro se the magistrate Judge's order striking Claxton's motion for entry of default and summary judgment. We dismiss this appeal for lack of jurisdiction.

"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 . . . . With respect to dispositive matters, a magistrate is only permitted to make recommendations for final Disposition by an Article III Judge." McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

Here, there is no final appealable order because the district court did not approve and adopt the magistrate Judge's order, see id., and because the parties did not consent to proceeding before a magistrate Judge pursuant to 28 U.S.C. § 636(c). Moreover, even had the district court approved the magistrate Judge's order, we would lack jurisdiction to consider this appeal because an order denying a motion for a default is not a final appealable order. See Bird v. Reese, 875 F.2d 256, 256 (9th Cir. 1989).*fn1

DISMISSED.

Disposition

DISMISSE ...


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