Opinion
CV 324-030
06-06-2024
RANDY LEE CAPEHART, Plaintiff, v. COMMISSIONER OF THE GEORGIA DEPARTMENT OF CORRECTIONS; ASSISTANT COMMISSIONER OVERSEEING DELIVERY OF HEALTH CARE; WHEELER CORRECTIONAL PRISON; and DR. NEAV, Defendants.
ORDER
After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which no objections have been filed. In lieu of objections, Plaintiff filed a document the Clerk of Court interpreted as a notice of appeal to the Eleventh Circuit, the substance of which responds to the Magistrate Judge's analysis of why the case should be dismissed. (Doc. no. 7.) Plaintiffs appeal to the Eleventh Circuit regarding the recommendation of dismissal does not divest this Court of jurisdiction to proceed.
Even if the Court were to consider Plaintiffs submission as objections rather than a notice of appeal, they would be overruled, as nothing therein changes the analysis that the case is due to be dismissed for the reasons explained by the Magistrate Judge. (See doc. no. 5.)
Although filing a notice of appeal generally divests a district court of jurisdiction over those issues involved in the appeal, “a notice of appeal filed with respect to a non-appealable order does not have any effect on the district court's jurisdiction.” United States v. Riolo, 398 Fed.Appx. 568, 571 (11th Cir. 2010) (per curiam) (citation omitted). The recommendation for dismissal by the Magistrate Judge is not an appealable order. See Young v. Ward, Civ. Act. No. 321-008, 2021 WL 2295586, at *1 (S.D. Ga. June 4, 2021); Garcia v. JP Morgan Chase. No. 1:11-CV-2149-AT-2012 WL 13008803, at *1 (N.D.Ga. Mar. 9, 2010).
Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, DISMISSES Plaintiffs case for failure to follow a Court order and failure to state a claim upon which relief may be granted, and CLOSES this civil action.
SO ORDERED.