Opinion
Civil Action No. 04-D-1574 (PAC).
January 9, 2006
ORDER
THIS MATTER is before the Court on pro se Plaintiff's Motion, titled "Notice of Appeal" filed January 3, 2006, in which Plaintiff requests that this Court "hold in abeyance this motion for Notice of Appeal and timely and properly file this motion on the court docket of this case should this court issue an order dismissing this civil action within the next 60 days if plaintiff is in transit with no mailing address and separated from his legal files in this case." Although the document at issue is titled "Notice of Appeal" I construe the document as a Motion.
Plaintiff is currently incarcerated at the United States Penitentiary in Beaumont, Texas, but may be transferred to another federal prison sometime in the near future. On August 12, 2005, Magistrate Judge Patricia A. Coan entered a Recommendation that Plaintiff's complaint in this matter should be dismissed in its entirety. Plaintiff filed an Objection to the Recommendation on October 27, 2005. This Court has not yet entered an order affirming or rejecting the Recommendation. It appears that Plaintiff is concerned that due to his transfer to another federal prison, he may be unable to timely file an appeal with the Tenth Circuit Court of Appeals in the event this Court affirms the Recommendation and dismisses this case sometime within the next 60 days. However, Plaintiff cites no authority, nor am I aware of any authority which would permit this Court to file a Notice of Appeal on behalf of a pro se litigant under the circumstances requested by Plaintiff in this case. Until this Court enters a decision concerning the Recommendation, there is no final appealable order in this case. See United States v. Allen, 972 F.2d 357 (1992) ("[t]he magistrate judge's recommendation cannot be construed as a premature announcement of the district court's final order"). Accordingly, it is hereby
ORDERED that Plaintiff's Motion, filed January 3, 2006 (docket #96), is DENIED.