William Barber, Jr. v. Eric Shinseki, et al

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REVISED PUBLISHED OPINION FILED. [6845096-2] [11-30147]

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Case: 11-30147 Document: 00511523486 Page: 1 Date Filed: 06/28/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED June 28, 2011 No. 11-30147 Summary Calendar Lyle W. Cayce Clerk WILLIAM L. BARBER, JR., Plaintiff - Appellant v. ERIC K. SHINSEKI; DEPARTMENT OF VETERANS AFFAIRS, Defendants - Appellees Appeal from the United States District Court for the Western District of Louisiana Before JOLLY, GARZA, and STEWART, Circuit Judges. PER CURIAM: William L. Barber, Jr., appeals, inter alia, the magistrate judge’s electronic order dismissing his case. For the reasons that follow, we hold that the order is not a final judgment. We therefore lack jurisdiction and DISMISS Barber’s appeal. I. On November 7, 2006, Dr. Eugene Balthazar performed a colonoscopy on William L. Barber, Jr. at the Veterans Affairs Medical Center in Alexandria, Louisiana. According to Barber, the procedure went badly awry, and he was Case: 11-30147 Document: 00511523486 Page: 2 Date Filed: 06/28/2011 No. 11-30147 forced to undergo emergency surgery the next day. Barber further claims that he was hospitalized until July 29, 2007. On May 18, 2010, Barber, acting through counsel, filed the complaint in this case; at the time, Barber was represented by Mark Smith. Shortly thereafter, Smith sought and was granted permission to withdraw. On June 21, Barber requested the appointment of counsel. On July 20, the district judge referred the motion to the magistrate judge “for the purpose of deciding same and conducting all necessary proceedings incidental thereto.” On July 23, the magistrate judge denied the motion, but granted Barber sixty days either to obtain representation or notify the court of his intention to proceed pro se. On September 24, Barber sought and was granted additional time to find representation. On December 1, Barber again asked the district court to appoint counsel; the motion was referred to the magistrate judge, who denied it via electronic order on December 13. On January 3, 2011, the magistrate judge entered yet another electronic order, which informed Barber that his action would be dismissed in seven days if he had not either enrolled counsel or informed the court of his intention to proceed pro se. On January 5, Barber sought reconsideration of the order denying his second motion to appoint counsel. The magistrate judge denied the motion for reconsideration in a January 11 electronic order; in the same order, the magistrate dismissed Barber’s suit for failure to comply with the court’s orders and for failure to prosecute. On January 13, Barber filed a motion for reconsideration; the motion was denied by the magistrate judge on January 21. On February 3, Barber filed a timely notice of appeal from the January 11 electronic order dismissing his case. 2 Case: 11-30147 Document: 00511523486 Page: 3 Date Filed: 06/28/2011 No. 11-30147 II. The threshold issue for decision is whether we have jurisdiction over Barber’s appeal. As noted, the order purporting to dismiss Barber’s suit was electronically entered by a magistrate judge. This court has jurisdiction over final judgments and certain interlocutory orders. 28 U.S.C. §§ 1291-92. We are concerned today with whether the magistrate judge’s order of dismissal is a final judgment within the meaning of Section 1291. Under our precedents, “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.” Donaldson v. Ducote, 373 F.3d 622, 624 (5th Cir. 2004). We have further explained: Congress has created a limited exception to this rule: Under 28 U.S.C. § 636(c)(1), a district court, 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. 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. Id. (internal marks and citations omitted). The record contains no evidence that Barber consented to have his case disposed of by a magistrate. Indeed, he repeatedly addressed his motions to the district judge, who in turn referred the motions to the magistrate judge. Moreover, “[w]e will not infer consent merely” because Barber appealed directly from the magistrate judge’s order unless “the record . . . reflect[s] that [Barber] . . . was notified of his right to withhold consent and retain his right to object to the magistrate judge's findings before the district court.” Id. There is no such evidence in the record before us. The district court has not entered an appealable judgment or order; thus, we do not have jurisdiction. 3 Case: 11-30147 Document: 00511523486 Page: 4 Date Filed: 06/28/2011 No. 11-30147 We nonetheless note that the district court has an obligation to issue a written, paper order when it disposes of a case. The electronic order of the magistrate judge dismissing the complaint runs afoul of this rule, which is set forth in FED. R. CIV. P. 58. We have recognized that under Rule 58, “every judgment shall be set forth on a separate document.” Theriot v. ASW Well Svc., 951 F.2d 84, 86-87 (5th Cir. 1992).1 The electronic order entered by the magistrate does not meet this requirement because it does not appear on any document other than the docket sheet. We therefore strongly encourage the district court to comply with Rule 58 when it enters dispositive orders or judgments in the future; otherwise, on appeal such electronic orders or judgments are subject to dismissal, and they perhaps bear other infirmities that should not be attendant with finality. III. The magistrate judge had no authority to enter a dispositive order in this case, meaning no appealable order or judgment has been entered. Barber’s appeal is therefore DISMISSED. 1 There are certain exceptions to this rule; none are relevant here. See FED. R. CIV. P. 58(a). 4

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