IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-50008
Conference Calendar
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KENNETH LEE JOHNSON,
Plaintiff-Appellant,
versus
DEBORAH PARKER, Captain, Disciplinary
Captain; CHARLES W. REDDEN; KENNETH
GREEN; MARK SCOTT,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-95-CV-100
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June 18, 1997
Before SMITH, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Kenneth Lee Johnson appeals from the district court’s denial
of his FED. R. CIV. P. 59(e) motion. Review is for an abuse of
discretion. Midland West Corp. v. Fed. Deposit Ins. Corp., 911
F.2d 1141, 1145 (5th Cir. 1990). Johnson argues that the
district court abused its discretion (1) in allowing the
magistrate judge to enter a final judgment against him, (2) by
*
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that this opinion should not be published and is not precedent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.
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allowing the magistrate judge to deny his IFP status, (3) by not
conducting a de novo review, and (4) by not reviewing the
magistrate judge's refusal to allow him to amend his complaint.
Johnson consented to proceed before the magistrate judge. Title
28 U.S.C. § 636(c), conferred on magistrate judges the authority
to conduct "any or all proceedings in a jury or nonjury civil
matter and order the entry of judgment in the case." Johnson's
personally-executed written consent to trial before the
magistrate judge pursuant to § 636(c), on its face, evinces valid
consent, binding upon him. See Johnson v. Hines, No. 93-7076
slip op. at 11 (5th Cir. September 15, 1994) (unpublished); see
also 5TH CIR. R. 47.5.3 (unpublished opinions issued before
January 1, 1996, are precedent). Because the denial of a motion
for IFP is not a matter excepted under 28 U.S.C. § 636(b)(1)(A),
the magistrate judge did not lack authority to enter such an
order. The record reveals no "good cause" or extraordinary
circumstances" that would have justified annulling the magistrate
judge's authority over the case. See Johnson, No. 93-7076 slip
op. at 11.
The district court did not err in refusing to conduct de
novo review. Once valid consent is given pursuant to § 636(c),
a party has no absolute right to withdraw that consent and demand
his right to an Article III judge. Carter v. Sea Land Servs.,
Inc., 816 F.2d 1018, 1021 (5th Cir. 1987) ("Once a right, even a
No. 97-50008
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fundamental right, is knowingly and voluntarily waived, a party
has no constitutional right to recant at will .").
Citing to Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974)
and TDCJ-ID rules, Johnson argues that the district court's
dismissal of his suit as frivolous was inappropriate because the
notice was not adequate to allow him to prepare a defense, that
he was denied his right to call witnesses and cross-examine, and
that there was insufficient evidence to support the finding of a
violation. We have reviewed the findings in the court below and
Johnson's contentions and we discern no abuse of discretion.
Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir. 1986)(citations
omitted); Wolff, 418 U.S. at 567-69.
Johnson’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. See 5TH CIR.
R. 42.2. Johnson's motion's objecting to the Prison Litigation
Reform Act and the court's reliance on it to deny in forma
pauperis status are DENIED. Carson v. Johnson, __ F.3d __, No.
96-41003, slip op. at 3164-66 (5th Cir. May 15, 1997).
This is not the first suit and appeal filed by Johnson which
has been dismissed as frivolous. See Johnson v. David, No. 93-
8350, slip op. at 2 (5th Cir. July 14, 1994) (dismissal, in part,
under § 1915 affirmed by this court) (unpublished); Johnson v.
Benner, No. 95-50608, slip op. at 1-2 (5th Cir. Nov. 17, 1995)
(dismissal under § 1915(d) affirmed in part and vacated and
No. 97-50008
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remanded in part, but sanctions warning issued by this court)
(unpublished). A prisoner may not
bring a civil action or appeal a judgment in
a civil action or proceeding under this
section if the prisoner has, on 3 or more
prior occasions, while incarcerated or
detained in any facility, brought an action
or appeal in a court of the United States
that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a
claim upon which relief may be granted,
unless the prisoner is under imminent danger
of serious physical injury.
28 U.S.C. § 1915(g). Including the dismissal of this suit and
this appeal, Johnson has four "strikes." See Adepegba v.
Hammons, 103 F.3d 383, 386-88 (5th Cir. 1996). Therefore, except
for cases involving an imminent danger of serious physical
injury, § 1915(g) bars Johnson from proceeding further under
§ 1915. He may proceed in subsequent civil cases under the fee
provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else.
APPEAL DISMISSED; MOTIONS DENIED; SANCTION IMPOSED.