Thomas Wilson v. Sally Chickering

                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 16-7185


THOMAS C. WILSON,

                Plaintiff - Appellant,

          v.

SALLY ANN CHICKERING,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.    Paige Jones Gossett, Magistrate
Judge. (0:16-cv-01579-TMC)


Submitted:   December 20, 2016             Decided:   December 22, 2016


Before GREGORY, Chief Judge, and WYNN and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Thomas Clay Wilson, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Thomas Clay Wilson seeks to appeal the magistrate judge’s

report recommending that the district court dismiss his civil

action without prejudice for failure to state a claim.                           After

Wilson filed his notice of appeal, the district court adopted

the magistrate judge’s recommendation and dismissed the action

without prejudice.            Wilson has not filed an amended notice of

appeal.

     This       court    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-

46 (1949).        When a notice of appeal is premature, the entry of

final   judgment        can    cure      the   resulting    jurisdictional       defect

under the doctrine of cumulative finality, but only if the order

appealed could have been certified for immediate appeal pursuant

to Rule 54(b).           In re Bryson, 406 F.3d 284, 287-89 (4th Cir.

2005); Equip. Fin. Grp. v. Traverse Computer Brokers, 973 F.2d

345, 347 (4th Cir. 1992).

     The report and recommendation Wilson seeks to appeal is

neither     a    final    order          nor   an    appealable    interlocutory      or

collateral order.             See Haney v. Addison, 175 F.3d 1217, 1219

(10th Cir. 1999).             Because the district court could not have

certified       the   report       and    recommendation     for   immediate     appeal

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under    Rule   54(b),   the   cumulative      finality    doctrine     does   not

apply.

     Accordingly,        we    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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