### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-30147 Summary Calendar

WILLIAM L. BARBER, JR., Plaintiff - Appellant
v. ERIC K. SHINSEKI; DEPARTMENT OF VETERANS AFFAIRS, Defendants - Appellees

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

Before JOLLY, GARZA, and STEWART, Circuit Judges. PER CURIAM: We sua sponte withdraw our previous opinion in this case and substitute 1 the following. The only changes in this opinion are to Part II, paragraph four, in which we remove language indicating that all judgments must be set forth on paper documents. Rule 58 requires that every j u d g m e n t be set forth on a separate document, but that document may be electronic. In all other respects, this opinion is the same as its predecessor. William L. Barber, Jr . , ap p e al s , i n te r a l ia , th e m a gi s tr ate judge’s electronic order dismissing his case. For the reasons that follow, we hold that the order is U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 14 , 20 11 Lyle W . Cayce Clerk

Barb er v. Shi nse ki , 645 F.3d706( 5th Cir. 2011)

. 1 Case: 11-30147 Document: 00511633651 Page: 1 Date Filed: 10/14/2011No. 11-30147

not a final judgment. We therefore lack jurisdiction and DISMISS Ba rb e r ’s appeal. I. On November 7, 2006, Dr. Eugene Balthazar performed a colonoscopy on William L. Barber, Jr. at the Veterans Affairs M e di c al C e nter in Alexandria, Louisiana. According to Barber, the procedure went badly awry, and he was forced to undergo emergency surgery the next day. Barber further claims that he was hospitalized until July 29, 2007. On May 18, 2010, Barber, acting th r o ugh counsel, filed the complaint in this case; at the time, Barber was represented by Mark Sm ith

. Shortly thereafter, Smith sought and was granted permission to withdraw. On June 21, Barber requested the appointment o f counsel. On July 20, the district judge referred the motion to the magistrate judge “for the purpose of deciding same and conducting all n e c e s s a ry proceedings incidental thereto.” On July 23, the magistrate judge denied the motion, but granted Barber sixty days either to obtain representation or notify the court of his intention to proceed pro se. On S e p t e mb er 24, Barber sought and was granted additional time to find representation. On December 1, Barber again asked the district court to appoint counsel; th e m o tion was referred to the magistrate judge, who denied it via electronic order on December 13. On January 3, 2011, the magistrate judge entered yet another electronic order, which informed Barber that his action would be dismissed in seven days if he had not either enrolled counsel or informed the court of his intention to proceed p r o s e . O n January 5, Barber sought reconsideration of the order denying his second motion to appoint counsel. The magistrate judge denied the motion for reconsideration in a January 11 electronic order; in the same order, the magistrate dismissed Barber’s suit for f ailure to comply with the court’s orders and for failure to prosecute. On January 13, Barber filed a motion f o r
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reconsideration; the motion was denied by the magistrate judge on January 21. On February 3, Barber filed a timely notice of appeal from th e J a n u ary 11 electronic order dismissing his case. II. The threshold issue for decision is whether we have jurisdiction over Barber’s appeal. As noted, the order purporting to dismiss B a rber’s suit was electronically entered by a magistrate judge. This court has jurisdiction over final judgments and certain interlocutory orders. 28 U.S.C. §§ 1291-92. We are concerned today with whether the magistrate judge’s order of dismissal is a final judgment within the meaning of Section 1291. Under our precedents, “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.” Donaldson v. Ducote , 373 F.3d 622, 624 (5th Cir. 2004). We have further explained: Congress has created a limited exception to this rule: Under 28 U.S.C. § 636(c)(1), a district court, with the voluntary consent of the parties, may authorize a magistrate judge to condu c t proceedings and enter final judgment in a case; such judgment is then a p p e al able 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. Id. (internal marks and citations omitted). The record contains no evidence that Barber consented to have his case disposed of by a magistrate. Indeed, he repeatedly addressed his motions to the district judge, who in turn referred the motions to the magistrate judge. Moreover, “[w]e will not infer consent merely” because Barber appealed directly from the magistrate judge’s order unless “the record

. . . reflect[s] that [Barber]

. . . was notified of his right to withhold

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consent and retain his right to object to the m agistrate judge's findings before the district court.” Id. There is no such evidence in the record before us. The district court has not entered an appealable judgment or order; thus, we do not have jurisdiction. We nonetheless note that the district court has an obligation to issue an order as a separate, freestanding document, and not just as a docket entry, when it disposes of a case. The electronic order of the magistrate judge dismissing the complaint runs afoul of this rule, which i s s e t f o rth in F E D
. R. C IV
. P. 58. We have recognized that unde r Rule 58, “every judgment shall be set forth on a separate document.” Theriot v . ASW Well Serv. , 951 F.2d 84, 86-87 (5th Cir. 1992). The electronic order entered by the magistrate judge does not meet this

2 requirement because it does not appear on any document—el e c t ronic or otherwise—other than as merely a separate entry on th e d ocket sheet. We therefore strongly enc o urage the district court to comply with Rule 58 when it enters dispositive orders or judgments in the future; otherwise, on appeal such electronic orders or judgments are subject to dismissal, and they perhaps bear other infirmities that should not be attendant with finality. III. The magistrate judge had no authority to enter a dispositive order in this
case, meaning no appealable order or judg m e n t h as been entered. Barber’s appeal is therefore DISMISSED.

There are certa in excep tio ns to this rule ; none are rele vant here

. See F E D

. R. C IV

. P. 2 58(a). 4 Case: 11-30147 Document: 00511633651 Page: 4 Date Filed: 10/14/2011