Harth v. Golliday ( 2023 )

Case: 22-60296 Document: 00516739020 Page: 1 Date Filed: 05/04/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-60296
Summary Calendar FILED
____________ May 4, 2023
Lyle W. Cayce
Kenneth Dwayne Harth, Sr., Clerk
Plaintiff—Appellant,
versus
Mrs. Golliday, Nurse,
Defendant—Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:20-CV-47
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Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Kenneth Harth, Sr., proceeding pro se, appeals the dismissal of his
case for failure to exhaust administrative remedies. We DISMISS the
appeal for lack of jurisdiction; the case remains in the district court.
This court must examine the basis of its jurisdiction on its own
motion, if necessary. See Hill v. City of Seven Points, 230 F.3d 167, 168–69
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60296 Document: 00516739020 Page: 2 Date Filed: 05/04/2023
No. 22-60296
(5th Cir. 2000). In this civil rights case, the plaintiff filed a notice of appeal
from the magistrate judge’s (purportedly final) order dismissing the case for
failure to exhaust administrative remedies.
The district court referred this case to the magistrate judge under 28
U.S.C. § 636(c). To properly enter judgment under this provision, the
magistrate judge needed the “consent of the parties.” Id. That is, appellate
courts do not have authority to review orders of a magistrate judge directly
unless the parties have consented to having the magistrate judge preside over
the case and enter judgment. See Barber v. Shinseki, 660 F.3d 877, 878–79
(5th Cir. 2011) (per curiam). Although Harth signed a consent form to this
effect, the record is devoid of evidence that Golliday provided such. Nor is
there any indication that the court made Golliday or counsel aware of the
need for consent and her right to refuse it. Cf. Roell v. Withrow, 538 U.S. 580,
590 (2003). Given the lack of evidence of consent in the record, 1 the
magistrate judge’s rulings are reviewable only by objection to the district
court. Colburn v. Bunge Towing, Inc., 883 F.2d 372, 379 (5th Cir. 1989); see
also 28 U.S.C. § 636(b)(1)(A). Because both parties did not consent to the
magistrate judge’s jurisdiction to enter final judgment, the order dismissing
Harth’s claims is not final, and we therefore lack jurisdiction over this appeal.
For the foregoing reasons, the appeal is DISMISSED for lack of
jurisdiction. All pending motions are DENIED as moot.
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1
The Local Uniform Civil Rules of the United States District Courts for the
Northern and Southern Districts of Mississippi require the filing of a written consent form
by all parties. See L.U.Civ.R. 73.
2