Opinion
22-4109
11-10-2022
ERIKA JACOBS, Plaintiff - Appellant, v. ASHLEY REGIONAL MEDICAL CENTER, Defendant-Appellee.
(D.C. No. 2:22-CV-00416-RJS-JCB) (D. Utah)
Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges.
ORDER
This matter is before the court on its own initiative following the opening of the appeal and this court's review of the district court's docket. Plaintiff-appellant Erika Jacobs seeks to appeal either: (1) Magistrate Judge Jared C. Bennett's report and recommendation [ECF No. 11], recommending that the district court dismiss her amended complaint with prejudice; or (2) preliminary, adverse rulings that she states in her notice of appeal demonstrate that "both judges to include the chief judges are biased to the defendant" [see ECF No. 13]. The district court has not yet addressed or adopted Judge Bennett's report and recommendation, nor has Ms. Jacobs lodged any objection to that report. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2).
Upon consideration of the district court's docket and the applicable law, the court dismisses the appeal for lack of a final order and thus of jurisdiction as set forth in greater detail below.
This court's appellate jurisdiction is generally limited to review of final decisions. 28 U.S.C. § 1291; see also United States v. Nixon, 418 U.S. 683, 690-92 (1974) ("The finality requirement of 28 U.S.C. § 1291 embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals."). Because the district court has neither addressed nor adopted Judge Bennett's report and recommendation and has not dismissed or otherwise disposed of Ms. Jacobs' amended complaint, the district court has not yet ended Ms. Jacobs' case on its merits and there is no final order for Ms. Jacobs to appeal. See Fed. R. Civ. P. 72(c) ("The district court may accept, reject, or modify the recommended disposition [of the magistrate judge]; receive further evidence; or return the matter to the magistrate judge with instructions."); Parker v. Utah, 502 Fed.Appx. 787, 789 (10th Cir. 2012) (noting court's dismissal of direct appeal from magistrate judge's report and recommendation for lack of final judgment).
Further, "this court's case law is clear that '[a]n order denying a motion to recuse or disqualify a judge is interlocutory, not final, and is not immediately appealable.'" See In re Syngenta AG MIR 162 Corn Litig., No. 20-3006, 2020 WL 4192067, at *1 (10th Cir. May 12, 2020) (unpublished) (quoting Lopez v. Behles (In re Am. Ready Mix, Inc.), 14 F.3d 1497, 1499 (10th Cir. 1994)); see also Kellogg v. Watts Guerra, LLP, 41 F.4th 1246, 1259 (10th Cir. 2022) (noting the "unavailability of an immediate appeal" from "the denial or a motion to recuse or disqualify a judge"). Because an order denying a motion to recuse is not immediately appealable, neither is a bare allegation that the judge should recuse. See id.
Because there is not yet a final order or judgement from which Ms. Jacobs may appeal, this court lacks jurisdiction over this appeal.
APPEAL DISMISSED.