IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40607
Summary Calendar
KIRBY GARDNER,
Plaintiff-Appellant,
versus
SHERRY BROWN, Administrator, TDCJ-ID;
B. CHANEY, Asst. Warden, Gurney Unit;
A.P. LARSON, Physician, Gurney Unit;
WAYNE SCOTT, Director, TDCJ-ID,
Defendants-Appellees.
Appeal from the United States District Court for the
Eastern District of Texas
(6:95-CV-547)
January 7, 1997
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
PER CURIAM:
Plaintiff-appellant Kirby Gardner (Gardner), a prisoner in the
Texas Department of Criminal Justice, filed this pro se, in forma
pauperis, civil rights action under 42 U.S.C. § 1983 against
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
various prison officials and employees, raising a host of claims.
The magistrate judge ultimately dismissed the complaint. No
judgment was rendered by the district court. In this appeal from
the dismissal of his suit, Gardner complains, among other things,
that the magistrate judge should not have entered judgment in the
case because any consent Gardner had given to proceeding before the
magistrate judge he should have been allowed to withdraw as he had
requested.
It is settled that a magistrate judge has no jurisdiction to
enter judgment in an ordinary civil case absent written consent of
the parties. 28 U.S.C. § 636(c)(1); Fed. R. Civ. P. 73(a) & (b);
Mendez Jr. International Co. v. M/V Sokai Maru, 978 F.2d 920 (5th
Cir. 1992). However, a party has no absolute right to withdraw a
validly given consent to trial before a magistrate judge, and
disposition of a request to withdraw consent is committed to the
sound discretion of the court. Carter v. Sea Land Services, Inc.,
816 F.2d 1018, 1021 (5th Cir. 1987). We conclude that valid
consent was never given and, alternatively, even if it be assumed
that consent was given, under the unique circumstances here,
withdrawal of consent was permitted and the permission could not be
withdrawn or the magistrate judge abused his discretion by not
allowing withdrawal. We accordingly vacate the judgment below and
remand the cause for further proceedings.
The complaint was initially filed in July 1995, and in
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September 1995 Gardner filed his "nonconsent" to proceeding before
the magistrate judge. No consent had been given prior to that
time. On November 7, 1995, the magistrate judge set a hearing
under Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), for
December 7, 1995. The Spears hearing was held on that date. The
magistrate judge opened the Spears hearing by explaining its
purpose. Immediately thereafter, he advised Gardner that he could
consent to trial before a magistrate judge "and that is what I am.
Are you interested in this?" Gardner replied that he was, and was
apparently handed a written consent form, which the magistrate
judge told him to sign and date "and then we will go ahead and
discuss your complaint in more detail." Although the record is
unclear, Gardner apparently signed the form at this time, and dated
it, as instructed by the magistrate judge, "12-7-95." Gardner
immediately asked if he would be able to appeal to a district
judge. The magistrate judge replied that he could appeal to the
Fifth Circuit. Gardner asked did this mean he could not appeal to
the district judge. The magistrate judge replied that that is what
it meant, he could only appeal to the Fifth Circuit. Gardner
replied "[w]ell, I would like to, I would like to strike that. I
would like to have an appeal directly to the district judge." The
magistrate judge responded that district policy was that where
there was a consent to trial before a magistrate judge, the only
appeal was to the Fifth Circuit. Gardner asked if this meant he
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could not appeal to the district court. The magistrate judge
responded, "Not if you consent to trial before me." (Emphasis
added). Gardner responded, "I would like to strike that, I would
like to have some kind of appeal to him [the district judge]." The
magistrate judge said "[a]ll right," and the following then
transpired:
"A [Gardner]. I would like to have some kind of review
of this.
Q [Magistrate Judge]. Okay, so, you don't want to
consent? You want to withdraw that?
A. Yes, sir.
Q. All right, let's talk about your [claim of] denial of
access to the courts, what is your problem there?"
(Emphasis added).
The hearing then for the first time proceeded into the substance of
a Spears hearing. Nothing further was said about consent to trial
before a magistrate judge at that hearing.
The minutes of the December 7, 1995, Spears hearing state
"pltf withdrew consent after signing" and on the next line "ct. w/d
consent." At the bottom of the December 7 minutes form there is a
blank following the printed legend "consent form executed," and
this blank is checked, but after the blank there appears "w/d."
The next relevant occurrence was the issuance of the
magistrate judge's "Report and Recommendation of the United States
Magistrate Judge on January 29, 1996." The next-to-last paragraph
of this document state "it is therefore recommended that
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plaintiff's complaint be dismissed without prejudice," and in the
last paragraph it is stated that failure to file objections to the
proposed findings and recommendations contained within the report
will bar de novo review by the district court thereof and will also
bar appellate review of findings accepted or adopted by the
district court except for plain error.
Thereafter, on March 25, 1996, Gardner filed a document in
essence asserting that he had never properly consented to proceed
before the magistrate judge, or should have been allowed to
withdraw the consent he had signed on December 7, as he had
requested at that hearing.
Thereafter, on April 2, 1996, the magistrate judge issued an
order in which he declined to allow Gardner to withdraw his
consent. The order recites that a consent form was executed at the
Spears hearing, and that Gardner was not coerced into signing it.
The order also states that Gardner's reasons for wanting to
withdraw the consent——such as asserted bias on the part of the
magistrate judge or the desire to have the district judge hear an
appeal or the like——were not adequate. However, the April 2, 1996,
order does not address the fact that Gardner, virtually immediately
upon signing or presenting the consent form at the Spears hearing,
and before the magistrate judge had finished explaining it to him,
sought to withdraw any such consent, if indeed the giving of
consent had actually been completed. Nor does the magistrate
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judge's April 2, 1996, order address the fact that before the
Spears hearing itself commenced, and before discussion of giving
consent was terminated, he apparently allowed Gardner to withdraw
any consent that might have been given at that time. Nor does the
magistrate judge's April 2, 1996, order address the January 29,
1996, Report and Recommendation, which is inconsistent with
anything other than consent not having been given, or if given
having been withdrawn with approval of the magistrate judge.
Ultimately, on May 3, 1996, the magistrate judge entered a
purported final judgment dismissing the suit.
Based on all the foregoing, we conclude that consent was never
validly given; before the consent transaction was consummated,
Gardner withdrew. Consent must be explicit and may not be
inferred. Caprera v. Jacobs, 790 F.2d 442, 445 (5th Cir. 1986);
Mendez Jr. at 922. Alternatively, even if it could be said that
consent had been given for some brief, fleeting theoretical moment,
it was thereupon promptly withdrawn, and the magistrate judge
allowed the withdrawal. He could not thereafter withdraw his
allowance of the withdrawal. Sockwell v. Phelps, 906 F.2d 1096
(5th Cir. 1990). At the very least, it was an abuse of his
discretion to do so.
Accordingly, the magistrate judge's "Final Judgment" is
vacated and the cause is remanded.
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VACATED and REMANDED
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