Filed: Jun. 17, 2005
Latest Update: Feb. 21, 2020
Summary: 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. _
Summary: 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. _ ..
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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should not be published and is not precedent except under the limited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.
7
8
