                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                In the United States Court of Appeals
                                                                      June 16, 2005
                         For the Fifth Circuit
                                                                 Charles R. Fulbruge III
                       _________________________                         Clerk

                               No. 04-41330

                       _________________________

JIMMY ROY DAVIDSON,

                                   Plaintiff - Appellant

                                   versus

VIRGINIA S. BUCHANAN; Dr. TIM REVELL, Regional Director Texas
Tech University Health Sciences Center Correctional Managed
Health Care; TEXAS TECH UNIVERSITY HEALTH SCIENCE CENTER;
UNIVERSITY TEXAS MEDICAL BRANCH; CORRECTIONAL MANAGEMENT HEALTH
CARE,

                                   Defendants - Appellees.

                       _________________________

           Appeal from the United States District Court
                For the Southern District of Texas
                     _________________________

                              (3:04-CV-408)

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     Jimmy Roy Davidson appeals from the district court’s dismissal

of his Section 1983 claim for failure to execute the appropriate

consents authorizing withdrawal of funds from his inmate trust

account for payment of the filing fee.          After examining the basis

for our jurisdiction, we affirm.



     *
       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     should not be published and is not precedent except under the limited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.
                                    I

     Davidson, an inmate housed at the Beto I Unit of the Texas

Department of Criminal Justice-Institutional Division, filed suit

under Section 1983 in April 2004 alleging that various defendants

had denied him proper medical treatment for his liver disease and

other health problems.   On June 23, 2004, the case was transferred

to the United States District Court for the Southern District of

Texas, Galveston Division.      On May 4, 2004, the district court

ordered Davidson to pay an initial partial filing fee of $4.98 or

show that he possessed insufficient assets or means to pay the fee

within thirty days of receipt of the order.           On July 20, 2004, a

magistrate judge found that Davidson had failed to comply with this

order,   and   recommended   that   his   case   be    dismissed   without

prejudice.

     Davidson filed a response to the magistrate judge’s report and

recommendation, and the district court deferred consideration until

August 16, 2004, to allow Davidson time to make arrangements with

prison officials to assure automatic collection of the filing fee

from his inmate trust fund account as funds became available.          On

September 2, 2004, the district court denied Davidson’s Motion for

Reconsideration and Entry of Protective Order and dismissed his

suit without prejudice, noting that it had received no notification

from the Texas Department of Criminal Justice that Davidson had

authorized the withdrawal of funds from his account.

     Davidson filed a timely notice of appeal and an application

                                    2
for leave to proceed in forma pauperis.                   A magistrate judge

considered Davidson’s motion to proceed IFP, and ordered Davidson

to make appropriate arrangements to pay the initial partial filing

fee pursuant to the Prisoner Litigation Reform Act of 1996, with

full payment to be made from Davidson’s inmate trust fund account

“if and when sufficient funds exist.”            No further action was taken

by the district court.             The Government has not responded to

Davidson’s brief, nor objected to the magistrate’s order granting

IFP.

                                           II

       Before addressing the merits of Davidson’s arguments, we must

first determine whether we have jurisdiction.1              As a general rule,

the findings of a magistrate judge are not final, appealable

orders.2       Here, the district court took no action following the

magistrate judge’s order granting Davidson’s motion to proceed IFP.

In Donaldson v. Ducote,3 we held that we lacked jurisdiction to

entertain a challenge to a magistrate judge’s order denying an

inmate’s motion to proceed IFP.             We observed that

       [o]rdinarily, the recommendation of a magistrate judge is
       not a final decision and does not in any way dispose of
       a party’s claims. A party dissatisfied with a magistrate
       judge’s decision may instead obtain relief by objecting


       1
         See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 539 n.1 (2005)
       (“Although our jurisdiction is uncontested, we are duty-bound to examine
       it sua sponte.”).

       2
           See Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir. 1984).
       3
           373 F.3d 622 (5th Cir. 2004).

                                           3
      to the magistrate judge’s findings and recommendations,
      thereby compelling the district court to review his
      objections de novo.4

In addition, we found that the inmate challenging the magistrate

judge’s order had not given “clear and unambiguous” consent to

proceed      before    the   magistrate       judge   pursuant   to   28   U.S.C.

§ 636(c)(1). 5        We remanded to the district court for the limited

purpose of reviewing the magistrate judge’s denial of IFP, and

retained jurisdiction pending the district court’s decision.

      In the present case, there is no evidence in the record that

Davidson gave consent to proceed before the magistrate judge.

Thus, the magistrate judge’s order granting IFP is neither final

nor appealable.         This fact has no bearing on our jurisdiction,

however, because the magistrate judge’s order granting Davidson’s

motion to proceed IFP has not been challenged by either party, and

is not at issue in this appeal.               Further, we have held that “[28

U.S.C. §] 1915(b) deals only with the administration of fees, not

the jurisdiction of the courts.”6             Given that Davidson’s status as

a pauper is unchallenged, we decline to return this case to the

district court for further consideration of a matter that is not at


      4
          Id. at 624 (citations and internal quotation marks omitted).
      5
          Id. at 624-25.
      6
        Jackson v. Stinnett, 102 F.3d 132, 136 (5th Cir. 1996); see also Garcia
v. Silbert, 141 F.3d 1415, 1417 n.1 (10th Cir. 1998) (stating that section
1915(g) is not jurisdictional and electing to reach the merits where section
1915(g) should have precluded claimant from appearing before the court without
prepayment of fees); McDowell v. Del. State Police, 88 F.3d 188, 191 (3d Cir.
1996) (noting that remittance of filing fees is not jurisdictional).

                                          4
issue in this appeal.7

                                        III

      Turning to the merits, we find that Davidson has not shown

that the district court abused its discretion by dismissing his

claim without prejudice for failing to authorize the necessary

withdrawals from his inmate trust fund account.               Davidson claims

that he diligently tried to comply with the district court’s order

regarding    the   payment    of   filing     fees,   but   was   thwarted    by

intransigent prison officials who refused to process his request.

In   addition,     he   claims   that    dismissal    of    his   complaint   on

procedural grounds is prejudicial because he is suffering from

severe hepatitis, and failure to grant relief on his Section 1983

claims will cause him irreparable harm.

      In Hatchet v. Nettles, we held that when a prisoner has not

complied with a district court’s initial partial failing fee order

within the applicable time period,

      the district court should take reasonable steps to
      ascertain whether the prisoner has complied with the
      order by allowing objections to a magistrate judge’s
      report, issuing a show-cause order, communicating by
      telephone, fax, or e-mail with officials of the custodial
      institution,   issuing   an   order  to   the   custodial
      institution, or using any other method designed to obtain
      the relevant information. Any inquiry and any response
      should be made a part of the record to allow this court

      7
        By declining to dismiss this appeal, we do not intimate that the parties’
mutual silence regarding the district court’s failure to take action with respect
to the magistrate judge’s order constitutes implied consent to proceed before the
magistrate pursuant to 28 U.S.C. § 636(c). See Roell v. Withrow, 538 U.S. 580,
590 (2003) (finding that consent to proceed under § 636(c) may be implied when
the parties are “made aware of the need for consent and the right to refuse it,
and still voluntarily appear[] to try the case before the Magistrate Judge”).

                                         5
     to review any subsequent dismissal. When a prisoner is
     allowed to file a response to a magistrate judge’s report
     or a show-cause order, a sworn affidavit or unsworn
     declaration made under penalty of perjury under 28 U.S.C.
     § 1746, setting forth the details of his compliance or
     copies of any relevant consent forms ordinarily will be
     sufficient to avoid dismissal for failure to comply with
     an initial partial filing fee order.8

     Here, the record indicates that the district court ordered

Davidson to pay an initial partial filing fee of $4.98 on May 4,

2004.      Following    the   magistrate     judge’s    recommendation    of

dismissal, the district court entered an order on August 16, 2004,

deferring consideration of the recommendation until August 27 in

order to allow Davidson additional time to comply with the May 4

order.9   On August 30, 2004, Davidson filed a motion in which he

requested an extension of time until September 27, 2004, on ground

that he was being “hindered in seeking access” to our court on

account of his having filed a class action lawsuit that could

result in “maximum liabilities to the potential defendants.”              On

September 2, 2004, the district court dismissed Davidson’s lawsuit,

noting that it had received no notification from TDCJ that Davidson

     8
        201 F.3d 651, 654 (5th Cir. 2000). The Eleventh Circuit has
explicitly approved of our approach in Hatchet, stating:
      We agree with the Fifth Circuit and hold that before dismissing a
      prisoner’s complaint for failure to comply with an IFP order
      directing the prisoner to pay an initial partial filing fee
      pursuant to 28 U.S.C. § 1915, the district court must take
      reasonable steps, such as those outlined by the Fifth Circuit, to
      determine whether the prisoner complied with the order by
      authorizing payment by prison officials.
Wilson v. Sargent, 313 F.3d 1315, 1321 (11th Cir. 2002).


     9
        Davidson filed objections to the magistrate judge’s report and
     recommendation on August 3, 2004.     This filing did not contain any
     evidence that Davidson had complied with the May 4 order.

                                      6
had authorized the necessary withdrawals from his inmate trust

account.     On September 9, 2004, Davidson filed a “Motion in

Supplement of Motion [for] Reconsideration and Entry of Protective

Order.” Attached to the motion was a form entitled “Inmate Request

for Withdrawal” directing TDCJ to transfer $4.98 from his inmate

trust account to the United States District Court in Galveston.

The   form   was   dated   August    23,      2004.     Also    attached     was   a

handwritten note directing TDCJ to release on an “as available

basis” the total filing fee of $150.            The request had been returned

to Davidson marked “balance is .14[$] not enough funds.”                   There is

no record evidence that the district court took any action with

respect to this second motion.

      Although Davidson belatedly made an unsuccessful attempt to

comply with the district court’s May 4 order, we find this effort

insufficient to disturb the district court’s dismissal order.

Davidson was given ample time to successfully obtain the necessary

authorization. Furthermore, this time was extended by the district

court, and      Davidson   was    permitted     to    file    objections    to   the

magistrate judge’s report and recommendation.                   By the time the

district court ordered his case dismissed, Davidson had been given

nearly four months to authorize payment of the necessary fees.

Given   these    facts,    we    cannot   say   that    the    district    court’s

dismissal was an abuse of discretion.

      AFFIRMED.



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