Freddie Fountain v. John Rupert ( 2016 )

Case: 15-40802 Document: 00513552594 Page: 1 Date Filed: 06/17/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-40802
United States Court of Appeals
Fifth Circuit
FILED
FREDDIE FOUNTAIN, and all others similarly situated, June 17, 2016
Lyle W. Cayce
Plaintiff-Appellant Clerk
v.
JOHN RUPERT, Warden, Coffield Unit; VICKIE BARROW, Access to Courts
Manager, Region II, Texas Department of Criminal Justice; GAYE
KARRIKER, Law Library Supervisor, Coffield Unit; DANIEL WHITE,
Investigator, Coffield Unit; ANISHA THOMPSON, LVN, UTMB Medical,
Coffield Unit,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:15-CV-100
Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
Freddie Fountain, Texas prisoner # 1640115, has filed a motion for leave
to proceed in forma pauperis (IFP) on appeal from the magistrate judge’s order
denying his motions for the appointment of counsel in his civil rights case.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-40802 Document: 00513552594 Page: 2 Date Filed: 06/17/2016
No. 15-40802
We must examine the basis of our jurisdiction, sua sponte, if necessary.
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A magistrate judge has
authority to hear and determine pretrial matters, such as a motion for the
appointment of counsel. See 28 U.S.C. § 636(b)(1)(A). Although an
interlocutory order denying the appointment of counsel in a civil rights action
may be appealed immediately, Robbins v. Maggio, 750 F.2d 405, 413 (5th Cir.
1985), to the extent that a litigant seeks to challenge such an order from a
magistrate judge, he must first do so in the district court, unless the parties
have consented to proceed before the magistrate judge, see § 636(b)(1)(A), (c)(1),
(c)(3); Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 219-20 (5th Cir.
2000). Otherwise, we lack jurisdiction over the appeal. Donaldson v. Ducote,
373 F.3d 622, 624-25 (5th Cir. 2004).
Because the parties did not consent to proceed before the magistrate
judge and Fountain did not challenge the magistrate judge’s order in the
district court, we lack jurisdiction over the instant appeal. See id. Accordingly,
the appeal is DISMISSED for lack of jurisdiction. Fountain’s motions for leave
to proceed IFP on appeal, for the appointment of appellate counsel, for leave to
supplement his appointment of counsel motion, for emergency leave to file an
affidavit in support of his appointment of counsel motion, and for general relief
including leave to file an unsworn declaration in support of his appointment of
counsel motion are DENIED. His implied letter request for the appointment
of counsel is also DENIED. Fountain’s motion to place the affidavit attached
to his IFP motion under seal is GRANTED.
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