United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                        REVISED JULY 8, 2004
                                                               June 9, 2004
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                 Clerk


                            No. 03-31122


     JOHN DONALDSON

                      Plaintiff - Appellant

     v.

     RICHARD DUCOTE

                      Defendant - Appellee


          Appeal from the United States District Court
              for the Middle District of Louisiana


Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

PER CURIAM:

     John Donaldson, Louisiana prisoner # 92968, has moved this

court for leave to proceed in forma pauperis (IFP) on appeal from

the district court’s dismissal of his 42 U.S.C. § 1983 suit as

frivolous and for failure to state a claim under 28 U.S.C.

§ 1915(e)(2)(B).   In denying Donaldson’s motion to proceed IFP on

appeal, the magistrate judge certified that the appeal is not

taken in good faith, relying on the reasons given by the district

court in its order dismissing Donaldson’s complaint.     Donaldson

challenges the magistrate judge’s decision.    For the reasons

given below, we hold that the magistrate judge did not have

jurisdiction to enter a final, appealable order under 28 U.S.C.
§ 1291, and we therefore remand Donaldson’s motion to the

district court.

     Donaldson filed a § 1983 complaint with the district court

alleging that Lieutenant Richard Ducote violated his Fourteenth

Amendment right to due process by denying him a copy of the

disciplinary report used against him in a prison disciplinary

proceeding and by denying him a copy of the written summary of

the disciplinary hearing.    The complaint was referred to a

magistrate judge, who recommended that the district court dismiss

the case under § 1915(e)(2)(B) because Donaldson could not

demonstrate that his disciplinary transfer to a maximum security

cellblock implicated a constitutionally protected liberty

interest.   Donaldson objected to the magistrate judge’s report

and recommendation.   After de novo review, the district court

adopted the report and dismissed Donaldson’s complaint both as

frivolous and for failure to state a claim.

     Donaldson timely filed a notice of appeal but did not pay

the requisite filing fee, causing the magistrate judge to order

that Donaldson either pay the fee or file a motion under Rule

24(a)(3) of the Federal Rules of Appellate Procedure to proceed

as a pauper on appeal.   Donaldson chose to file an IFP motion,

which the magistrate judge denied under 28 U.S.C. § 1915(a)(3)

because she found that Donaldson’s appeal was not taken in good

faith.   See FED. R. APP. P. 24(a)(3).   By moving this court for

IFP status on appeal, see FED. R. APP. P. 24(a)(5), Donaldson is

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challenging the magistrate judge’s certification order.        See

Baugh v. Taylor, 

, 201-02 (5th Cir. 1997).       In this

challenge, Donaldson does not argue that the magistrate judge

lacked the authority to enter this certification order.

Nevertheless, because the magistrate judge’s authority to enter a

final, appealable order implicates this court’s jurisdiction, “we

must address it sua sponte even if it is not raised by the

parties.”   Caprera v. Jacobs, 

, 444 n.2 (5th Cir.

1986); see also 

(“[W]hen the objection is to

jurisdiction, it cannot be waived.”).

     In general, 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.       See Trufant v. Autocon, Inc.,

, 309 (5th Cir. 1984).      Ordinarily, “the

recommendation of a magistrate judge is not a final decision and

does not in any way ‘dispose of’ a party’s claims.”        United

States v. Cooper, 

, 963 (5th Cir. 1998) (discussing

the general grant of authority to magistrate judges when a case

is referred under 28 U.S.C. § 636(b)).      A party dissatisfied with

a magistrate judge’s decision may instead obtain relief by

objecting to the magistrate judge’s findings and recommendations,

thereby compelling the district court to review his objections de

novo.   See 28 U.S.C. § 636(b)(1)(C); 

; cf.

FED. R. CIV. P. 72(b).   Congress has created a limited exception

to this rule: “Under 28 U.S.C. § 636(c)(1), a district court,

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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.”   

.1

     After thoroughly reviewing the record, we find no evidence

that Donaldson consented to the magistrate judge’s jurisdiction

to enter a final judgment on his right to appeal IFP.    We will

not infer consent merely from Donaldson’s conduct in appealing

directly from the magistrate judge’s certification order––instead

of first filing an objection with the district court––because the

record does not reflect that he was notified of his right to

withhold consent and retain his right to object to the magistrate




     1
          Although the Supreme Court held, in Roell v. Withrow,

(2003), that a party’s consent to proceed before a
magistrate judge under § 636(c) need not be express––i.e., the
requisite consent can be inferred from the party’s conduct––the
Court did not alter our rule that the party’s consent must be
clear and unambiguous. 

(holding that the parties had
“‘clearly implied their consent’ by their decision to appear
before the Magistrate Judge, without expressing any reservation,
after being notified of their right to refuse and after being
told that she intended to exercise case-dispositive authority”).

                                 4
judge’s findings before the district court.2      See 

n.4 (holding that “notice of the right to refuse the

magistrate judge is a prerequisite to any inference of consent”

under § 636(c)(2)).       Therefore, because the district court has

not entered a final, appealable order adopting the magistrate

judge’s certification that the appeal is not taken in good faith,

we do not have jurisdiction over Donaldson’s motion to proceed

IFP.       See id.; see also Ambrose v. Welch, 

, 1085

(6th Cir. 1984); cf. Jones v. Johnson, 

, 311 (5th

Cir.       1998) (holding that, in cases not referred to a magistrate

judge under § 636(c), “the pivotal question is whether a given

duty assigned to a magistrate judge is subject to meaningful

review by the district judge,” and concluding that, when there

“was insufficient provision for review” then the “magistrate

judge’s purported [decision] is inadequate to confer jurisdiction

on this court”).

       Accordingly, we hold that Donaldson’s motion to proceed IFP

is premature and we REMAND the case to the district court for the

limited purpose of reviewing the magistrate judge’s certification

that Donaldson’s appeal is not taken in good faith and entering

an appropriate order.       The Clerk of the district court shall


       2
          Moreover, in its certification order, the magistrate
judge specifically advised Donaldson that he could “challenge”
the certification by filing a motion to proceed IFP “with the
Clerk of the Court for the United States Court of Appeals for the
Fifth Circuit.”

                                     5
supplement the record on appeal with a certified copy of that

order.   If the district court rules that Donaldson’s appeal is

not taken in good faith, we will treat Donaldson’s existing

motion as applicable to the district court’s order and will then

rule on the motion.   We retain jurisdiction of Donaldson’s appeal

pending the district court’s compliance with our limited remand.




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