UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7858
RALPH SMITH,
Plaintiff - Appellant,
v.
PATRICIA T. WATSON, Commonwealth’s Attorney,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:13-cv-00532-JRS)
Submitted: February 27, 2014 Decided: March 5, 2014
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ralph Smith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ralph Smith seeks to appeal from the magistrate
judge’s order requiring him to pay a partial filing fee or state
under penalty of perjury that he does not have sufficient assets
to pay such a fee. Smith filed his notice of appeal prior to
the entry of the district court’s order on December 12, 2013,
dismissing his action without prejudice for disregarding the
magistrate judge’s directives.
We may exercise jurisdiction only over final orders,
28 U.S.C. § 1291 (2012), and certain interlocutory and
collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P.
54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–
47 (1949). When a notice of appeal is premature, the
jurisdictional defect can be cured if the district court enters
a final judgment prior to our consideration of the appeal under
the doctrine of cumulative finality. Equip. Fin. Grp., Inc. v.
Traverse Computer Brokers, 973 F.2d 345, 347–48 (4th Cir. 1992).
Not all premature notices of appeal, however, are subject to the
cumulative finality rule. Instead, this doctrine applies only
if the appellant appeals from an order the district court could
have certified for immediate appeal under Fed. R. Civ. P. 54(b).
In re Bryson, 406 F.3d 284, 287–89 (4th Cir. 2005). Appeals
from “clearly interlocutory decision[s]” cannot be saved under
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cumulative finality. Id. at 288 (internal quotation marks
omitted).
The magistrate judge’s order is not a final order of
the district court and is not appealable under the collateral
order exception to the final judgment rule. The order also is
not one of the orders subject to appeal under 28 U.S.C. § 1292.
Further, because the district court could not have certified the
order for immediate appeal under Rule 54(b), the cumulative
finality rule cannot apply. Accordingly, we deny Smith’s motion
for a transcript at government expense and dismiss the appeal
for lack of jurisdiction. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
DISMISSED
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