United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JULY 8, 2004
June 9, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-31122
JOHN DONALDSON
Plaintiff - Appellant
v.
RICHARD DUCOTE
Defendant - Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:
John Donaldson, Louisiana prisoner # 92968, has moved this
court for leave to proceed in forma pauperis (IFP) on appeal from
the district court’s dismissal of his 42 U.S.C. § 1983 suit as
frivolous and for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B). In denying Donaldson’s motion to proceed IFP on
appeal, the magistrate judge certified that the appeal is not
taken in good faith, relying on the reasons given by the district
court in its order dismissing Donaldson’s complaint. Donaldson
challenges the magistrate judge’s decision. For the reasons
given below, we hold that the magistrate judge did not have
jurisdiction to enter a final, appealable order under 28 U.S.C.
§ 1291, and we therefore remand Donaldson’s motion to the
district court.
Donaldson filed a § 1983 complaint with the district court
alleging that Lieutenant Richard Ducote violated his Fourteenth
Amendment right to due process by denying him a copy of the
disciplinary report used against him in a prison disciplinary
proceeding and by denying him a copy of the written summary of
the disciplinary hearing. The complaint was referred to a
magistrate judge, who recommended that the district court dismiss
the case under § 1915(e)(2)(B) because Donaldson could not
demonstrate that his disciplinary transfer to a maximum security
cellblock implicated a constitutionally protected liberty
interest. Donaldson objected to the magistrate judge’s report
and recommendation. After de novo review, the district court
adopted the report and dismissed Donaldson’s complaint both as
frivolous and for failure to state a claim.
Donaldson timely filed a notice of appeal but did not pay
the requisite filing fee, causing the magistrate judge to order
that Donaldson either pay the fee or file a motion under Rule
24(a)(3) of the Federal Rules of Appellate Procedure to proceed
as a pauper on appeal. Donaldson chose to file an IFP motion,
which the magistrate judge denied under 28 U.S.C. § 1915(a)(3)
because she found that Donaldson’s appeal was not taken in good
faith. See FED. R. APP. P. 24(a)(3). By moving this court for
IFP status on appeal, see FED. R. APP. P. 24(a)(5), Donaldson is
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challenging the magistrate judge’s certification order. See
Baugh v. Taylor, 117 F.3d 197, 201-02 (5th Cir. 1997). In this
challenge, Donaldson does not argue that the magistrate judge
lacked the authority to enter this certification order.
Nevertheless, because the magistrate judge’s authority to enter a
final, appealable order implicates this court’s jurisdiction, “we
must address it sua sponte even if it is not raised by the
parties.” Caprera v. Jacobs, 790 F.2d 442, 444 n.2 (5th Cir.
1986); see also id. at 445 (“[W]hen the objection is to
jurisdiction, it cannot be waived.”).
In general, it is well established that a magistrate judge’s
order is not “final” within the meaning of § 1291 and may not be
appealed to this court directly. See Trufant v. Autocon, Inc.,
729 F.2d 308, 309 (5th Cir. 1984). Ordinarily, “the
recommendation of a magistrate judge is not a final decision and
does not in any way ‘dispose of’ a party’s claims.” United
States v. Cooper, 135 F.3d 960, 963 (5th Cir. 1998) (discussing
the general grant of authority to magistrate judges when a case
is referred under 28 U.S.C. § 636(b)). A party dissatisfied with
a magistrate judge’s decision may instead obtain relief by
objecting to the magistrate judge’s findings and recommendations,
thereby compelling the district court to review his objections de
novo. See 28 U.S.C. § 636(b)(1)(C); Cooper, 135 F.3d at 962; cf.
FED. R. CIV. P. 72(b). Congress has created a limited exception
to this rule: “Under 28 U.S.C. § 636(c)(1), a district court,
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with the voluntary consent of the parties, may authorize a
magistrate [judge] to conduct proceedings and enter final
judgment in a case; such judgment is then appealable to the
circuit court directly.” Trufant, 729 F.2d at 309. Because this
process requires the parties to waive their constitutional rights
to an Article III judge, we have held that a case does not fall
within the jurisdictional ambit of § 636(c) unless the parties’
consent to proceed before a magistrate judge is “clear and
unambiguous.” Caprera, 790 F.2d at 444.1
After thoroughly reviewing the record, we find no evidence
that Donaldson consented to the magistrate judge’s jurisdiction
to enter a final judgment on his right to appeal IFP. We will
not infer consent merely from Donaldson’s conduct in appealing
directly from the magistrate judge’s certification order––instead
of first filing an objection with the district court––because the
record does not reflect that he was notified of his right to
withhold consent and retain his right to object to the magistrate
1
Although the Supreme Court held, in Roell v. Withrow,
538 U.S. 580 (2003), that a party’s consent to proceed before a
magistrate judge under § 636(c) need not be express––i.e., the
requisite consent can be inferred from the party’s conduct––the
Court did not alter our rule that the party’s consent must be
clear and unambiguous. Id. at 586 (holding that the parties had
“‘clearly implied their consent’ by their decision to appear
before the Magistrate Judge, without expressing any reservation,
after being notified of their right to refuse and after being
told that she intended to exercise case-dispositive authority”).
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judge’s findings before the district court.2 See Roell, 538 U.S.
at 587 n.4 (holding that “notice of the right to refuse the
magistrate judge is a prerequisite to any inference of consent”
under § 636(c)(2)). Therefore, because the district court has
not entered a final, appealable order adopting the magistrate
judge’s certification that the appeal is not taken in good faith,
we do not have jurisdiction over Donaldson’s motion to proceed
IFP. See id.; see also Ambrose v. Welch, 729 F.2d 1084, 1085
(6th Cir. 1984); cf. Jones v. Johnson, 134 F.3d 309, 311 (5th
Cir. 1998) (holding that, in cases not referred to a magistrate
judge under § 636(c), “the pivotal question is whether a given
duty assigned to a magistrate judge is subject to meaningful
review by the district judge,” and concluding that, when there
“was insufficient provision for review” then the “magistrate
judge’s purported [decision] is inadequate to confer jurisdiction
on this court”).
Accordingly, we hold that Donaldson’s motion to proceed IFP
is premature and we REMAND the case to the district court for the
limited purpose of reviewing the magistrate judge’s certification
that Donaldson’s appeal is not taken in good faith and entering
an appropriate order. The Clerk of the district court shall
2
Moreover, in its certification order, the magistrate
judge specifically advised Donaldson that he could “challenge”
the certification by filing a motion to proceed IFP “with the
Clerk of the Court for the United States Court of Appeals for the
Fifth Circuit.”
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supplement the record on appeal with a certified copy of that
order. If the district court rules that Donaldson’s appeal is
not taken in good faith, we will treat Donaldson’s existing
motion as applicable to the district court’s order and will then
rule on the motion. We retain jurisdiction of Donaldson’s appeal
pending the district court’s compliance with our limited remand.
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