           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 12, 2009

                                     No. 08-40631                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ANDY L. SMITH

                                                  Plaintiff - Appellant
v.

AMERICAN POSTAL WORKERS UNION

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 6:07-cv-00347


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Upon his return from active military duty in 2005, Andy Smith sought
reemployment with the United States Postal Service. However, disputes arose
over his proper employment position, his seniority, and his backpay at the
USPS. Smith, a member of the American Postal Workers Union, pursued
grievances against the USPS. However, believing that the Union did not fairly
represent him in these grievances, Smith changed his target and filed a pro se


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                        No. 08-40631

suit against the Union and a number of Union members. Smith’s third amended
complaint claims, in part, breach of the Union’s duty of fair representation,
violation of the prohibition of political recommendations for employment within
the postal service, violation of the National Labor Relation Act, discrimination
based on race and sex, and breach of contract.
       We review the district court’s dismissal of Smith’s case de novo.1 The
district court did not err in dismissing the claims against the individual
defendants as they were not proper defendants.2 We also affirm the district
court’s dismissal of Smith’s suit against the Union for failure to state a claim on
any of the alleged causes of action because, as stated in the magistrate’s report,
Smith’s complaint is a combination of conclusory allegations and facts, that even
when taken as true, are not sufficient as a matter of law to entitle him to relief.3
In so ruling, the district court, despite Smith’s contention to the contrary,
considered the affidavits and other documents attached to the complaint, as
made clear in the magistrate’s report. Smith also claims that the district court
erred by refusing to grant his motion to transfer his case to another magistrate
for pretrial proceedings. The consent of the parties is not required for a district
court to refer a motion to dismiss to a magistrate under 28 U.S.C. § 636(b)(1)(B).4
Moreover, the magistrate judge generously considered Smith’s motion as a



       1
         Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, 354 F.3d 348, 351
(5th Cir. 2003).
       2
        Atkinson v. Sinclair Refining Co., 370 U.S. 238, 247-48 (1962) (“When Congress passed
[the Labor Management Relations Act], it declared its view that only the union was to be made
to respond for union wrongs, and that the union members were not to be subject to levy.”).
       3
         See McConathy v. Dr. Pepper / Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)
(“Dismissal is appropriate ‘only if it appears that no relief could be granted under any set of
facts that could be proven consistent with the allegations.’”) (quoting Rubinstein v. Collins, 20
F.3d 160, 166 (5th Cir. 1994)).
       4
           Newsome v. EEOC, 301 F.3d 227, 230 (5th Cir. 2002).

                                               2
                                       No. 08-40631

motion to recuse under 28 U.S.C. § 144 and did not abuse her discretion in
finding no personal bias against Smith.5 AFFIRMED.




     5
         U.S. v. Merkt, 794 F.2d 950, 960 (5th Cir. 1986).

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