William Wells v. Bryan Collier, Director

Case: 18-40885 Document: 00514841413 Page: 1 Date Filed: 02/19/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40885 FILED
February 19, 2019
Lyle W. Cayce
WILLIAM J. WELLS, Clerk
Plaintiff–Appellant,
v.
BRYAN COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE; KEVIN WHEAT; GREGORY VAUGHN,
Defendants–Appellees.
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 9:17-CV-80
Before SMITH, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
This court must examine the basis of its jurisdiction on its own motion if
necessary. Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000). In
this civil rights case, the plaintiff moved for joinder of claims and a preliminary
injunction. The district court referred the motions to the magistrate judge, who
denied them. The plaintiff filed a notice of appeal from that order. Appellate
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40885 Document: 00514841413 Page: 2 Date Filed: 02/19/2019
No. 18-40885
courts do not have authority to review orders of a magistrate judge directly
unless the parties have consented to have 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). Lacking consent, the magistrate judge=s rulings are
reviewable only by appeal 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). Here, the
parties did not consent to have the magistrate judge preside over the case. We
thus lack jurisdiction over this appeal.
Plaintiff also filed a notice of appeal from the district court’s denial of
class certification. A party wishing to appeal a denial of class certification must
petition this court for leave to do so. Fed. R. Civ. P. 23(f). We pretermit whether
Wells complied with that requirement because we deny relief on other grounds.
This court has wide discretion to permit an appeal from an order denying class
certification. See Microsoft Corp. v. Baker, ––– U.S. ––––, 137 S. Ct. 1702, 1709
(2017). Wells has not made a showing that we should exercise that discretion.
He says that the one missing element for class action certification, adequacy of
representation, could have been remedied if the district court granted his
motion to appoint counsel. But the standard for appointment of counsel is
separate, and that decision was not appealed. See Ulmer v. Chancellor, 691
F.2d 209, 213 (5th Cir. 1982) (listing factors to consider on appointment-of-
counsel motion). And this court has denied permission to appeal in a similar
situation. Hernandez v. Abbott, 733 F. App’x 212, 213 (5th Cir. 2018) (denying
permission to appeal class certification decision where district court also
denied motion to appoint counsel and pro se plaintiff met all other elements).
We DISMISS plaintiff’s notice of appeal from magistrate judge orders,
DENY permission to appeal denial of class certification, and DENY his motion
to appoint counsel in this court.
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Case: 18-40885 Document: 00514841413 Page: 3 Date Filed: 02/19/2019
No. 18-40885
HAYNES, Circuit Judge, dissenting in part:
I concur in the order of this court, except that I would conclude that
Wells, given the liberal construction of pro se filings, has applied for permission
to appeal the denial of class certification, and I would grant that permission.
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