813 F.2d 400
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Albert Delano CROOKE, Appellant,
v.
Maryland Department of Corrections and Public Safety, Frank
Hall, Secretary, Appellees.
No. 86-8008.
United States Court of Appeals, Fourth Circuit.
Submitted July 11, 1986.
Decided Sept. 8, 1986.
Before HALL, ERVIN and CHAPMAN, Circuit Judges.
Albert Delano Crooke, appellant pro se.
Richard Kastendieck, Assistant Attorney General, for appellees.
PER CURIAM:
Albert Delano Crooke, a Maryland inmate, filed this 42 U.S.C. Sec. 1983 suit against the Maryland Department of Public Safety and Correctional Services, alleging that:
(1) illegally obtained information contained in his prison file was being considered in determining his eligibility for parole;
(2) the Department's policy of transporting prisoners during early morning hours imposed undue hardship; and
(3) the Department's use of handcuff covers ("black boxes") on prisoners being transported bordered on cruel and unusual punishment.
Both parties consented to the jurisdiction of the magistrate pursuant to 28 U.S.C. Sec. 636(c). Only Crooke, however, further consented that appeal should be taken to the district court rather than directly to this Court. Under Fed.R.Civ.P. 73(c), "unless the parties otherwise agree to the optional appeal route [to the district court], appeal from a judgment entered upon direction of a magistrate ... will be to the court of appeals." See also 28 U.S.C. Sec. 636(c)(3) and (4). There having been no agreement between the parties in this case to appeal to the district court, we treat Crooke's appeal as being properly before this Court despite the district court's action on it.*
We have accordingly reviewed the record and arguments submitted by the parties. Finding no error in the magistrate's disposition of Crooke's claims, we affirm the judgment below on the reasoning of the magistrate. Crooke v. Maryland Department of Corrections and Public Safety, C/A No. R-85-1019 (D.Md., Sept. 18, 1985; Jan. 6, 1986). We dispense with oral argument because the dispositive issues recently have been decided authoritatively.
AFFIRMED.
The Department's motion to dismiss the appeal as untimely must be denied. Crooke noted his appeal within thirty days of the magistrate's decision. The certificate of service on Crooke's "motion to dismiss decision of U.S. Magistrate" does not reflect that it was served on the defendant in compliance with Fed.R.Civ.P. 5 within ten days of the magistrate's judgment. Even if Crooke's postjudgment motion were, however, considered to render his initial notice of appeal void, the record reflects that Crooke filed a new notice of appeal within thirty days after a ruling on that motion. Fed.R.App.P. 4(a)(4)
