     Case: 11-30147    Document: 00511522718      Page: 1   Date Filed: 06/28/2011




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

                                                                        FILED
                                                                       June 28, 2011

                                   No. 11-30147                        Lyle W. Cayce
                                 Summary Calendar                           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
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                                 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 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.




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                                  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.


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                                           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.3d 84, 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).

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