* Pursuant to Local Rule 47.5, the Court has determine d that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-40607

Summary Calendar

KIRBY GARDNER,

Plaintiff-Appellant,

versus

SHERRY BROWN, Administrator, TDCJ-ID;

B. CHANEY, Asst. Warden, Gurney Unit;

A.P. LARSON, Physician, Gurney Unit;

WAYNE SCOTT, Director, TDCJ-ID,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Texas

(6:95-CV-547)

January 7, 1997

Before GARWOOD, JOLLY and DENNIS, Circuit Judges. *

PER CURIAM:

Plaintiff-appellant Kirby Gardner (Gardner), a prisoner in the

Texas Department of Criminal Justice, filed this pro se, in forma

pauperis, civil rights action under 42 U .S.C. § 1983 against2

various prison officials and employees, raising a host of claims.

The magistrate judge ulti mately dismissed the complaint. No

judgment was rendered by the district court. In this appeal from

the dismissal of his suit, Gardner complains, among other things,

that the magistrate judge should not have entered judgment in the

case because any consent Gardner had given to proceeding before the

magistrate judge he should have been allowed to withdraw as he had

requested.

It is settled that a magistrate judge has no jurisdiction to

enter judgment in an ordinary civil case absent written consent of

the parties. 28 U.S.C. § 636(c)(1); Fed. R. Civ. P. 73(a) & (b);

Mendez Jr. International Co. v. M/V Sokai Maru , 978 F.2d 920 (5th

Cir. 1992). However, a party has no absolute right to withdraw a

validly gi ven consent to trial before a magistrate judge, and

disposition of a request to withdraw consent is committed to the

sound discretion of the court. C arter v. Sea Land Services, Inc.

,

816 F.2 d 1018, 1021 (5th Cir. 1987). We conclude that valid

consent was never given and, alternatively, even if it be assumed

that consent was given, under the uniqu e circumstances here,

withdrawal of consent was permitted and the permission could not be

withdrawn or the magistrate judge abused his discretion by not

allowing withdrawal. We accordingly vacate the judgment below and

remand the cause for further proceedings.

The complaint was initially filed in July 1995, and in3

September 1995 Gardner filed his "nonconsent" to proceeding before

t he magistrate judge. No consent had been given prior to that

time. On November 7, 1995, the magistrate judge set a hearing

under Spears v. McCotter

, 766 F.2d 179 (5th Cir. 1985), for

December 7, 1995. The Spears hearing was held on that date. The

magistrate judge opened the Spears hearing b y explaining its

purpose. Immediately thereafter, he advised Gardner that he could

consent to trial before a magistrate judge "and that is what I am.

Are you interested in this?" Gardner replied that he was, and was

a pparently handed a written consent form, which the magistrat e

judge told him to sign and date "and then w e will go ahead and

discuss your complaint in more detail." Although the record is

unclear, Gardner apparently signed the form at this time, and dated

it, as instructed by the magistrate judge, "12-7-95." Gardner

immediate ly

asked if he would be able to appeal to a district

judge. The magistrate judge replied that he could appeal to the

Fifth Circuit. Gardner asked did this mean he could not appeal to

the district judge. The magistrate judge replied that that is what

it meant, he could only appeal to the Fifth Circuit. Gardner

replied "[w]ell, I would like to, I would like to strike that. I

would like to have an appeal directly to the district judge." The

magistrate judge responded that distr ict policy was that where

there was a consent to trial before a magistrate ju dge, the only

appeal was to the Fifth Circu it. Gardner asked if this meant he4

could not appeal to the district court. The magistrate judge

responded, "Not if you consent to trial before me." (Emphasis

added). Gardner responded, "I would like to strike that, I would

like to have some kind of appeal to him [the district judge]." The

magistr ate judge said "[a]ll right," and the following then

transpired:

"A [Gardner]. I would like to have some kind of review

of this.

Q [Magistrate Judge]. Okay, so, you don't want to

consent? You want to withdraw that?

A. Yes, sir.

Q. A ll right

, let's talk about your [claim of] denial of

access to t he courts, what is your problem there?"

(Emphasis added).

The hearing then for the first time proceeded into the substance of

a Spears hearing. Nothing further was said about consent to trial

before a magistrate judge at that hearing.

The minutes of the December 7, 1995, Spears hearing state

"pltf withdrew consent after signing" and on the next line "ct. w/d

consent." At the bottom of the December 7 minutes form there is a

blank following the printed legend "consent form executed," and

this blank is checked, but after the blank there appears "w/d."

The next relevant occurrence was the issuance of the

magistrate judge's "Report and Recommendation of the United States

Magistrate Judge on January 29, 1996." The next-to-last paragraph

of this document s tate "it is therefore recommended that5

plaintiff's complaint be dismissed without prejudice," and in the

last paragraph it is stated that failure to file objections to the

proposed findings and recommendations contained within the report

will bar de novo review by the district court thereof and will also

bar appellate review of findings accepted or adopted by the

district court except for plain error.

There after, on March 25, 1996, Gardner filed a document in

essence asserting that he had never properly consented to proceed

before the magistrate judge, or should have been allowed to

withdr aw the consent he had signed on December 7, as he had

requested at that hearing.

Thereafter, on April 2, 1996, the magistrate judge issued an

order in which he declined to allow Gardner to withdraw his

consent. The order recites that a consent form was executed at the

Spears hearing, and that Gardner was not coerced into signing it.

The order also states that Gardner's reasons for wanting to

withdraw the consent

—— such as asserted bias on the pa rt of the

magistrate judge or the desire to have the district judge hear an

appeal or the like

—— were not adequate. However, the April 2, 1996,

order does not address the fact that Gardner, virtually immediately

upon signing or presenting the consent form at the Spears hearing,

and before the magistrate judge had finished explaining it to him,

sought to withdraw any such consent, if indeed the giving of

consent had actually been completed. Nor does the magistrate6

judge's April 2, 1996, order address the fact that before the

Spears hearing itself commenced, and before discussion of giving

consent was terminated, he apparently allowed Gardner to withdraw

any consent that might have been given at that time. Nor does the

magistrate judge's April 2, 1996, order address the January 29,

1 996, Report and Recommendation, which is inconsistent with

anything other than consent not having been given, or if given

having been withdrawn with approval of the magistrate judge.

Ultimately, on May 3, 1996, the magistrate judge entered a

purported final judgment dismissing the suit.

Based on all the foregoing, we conclude that consent was never

validly given ; before the consent transaction was consummated,

Gardner withdrew. Consent must be explicit and may not be

inferred. C aprera v. Jacobs

, 790 F.2d 442 , 445 (5th Cir. 1986);

Mendez Jr

. at 922. Alternatively, even if it could be said that

consent had been given for some brief, fleeting theoretical moment,

it was thereupon promptly withdrawn, and the magistrate judge

allowed the withdra wal. He could not thereafter withdraw his

allowance of the withdrawal. S ockwell v. Phelps

, 906 F.2d 1096

(5th Cir. 1990). At the very least, it was an abuse of his

discretion to do so.

Accordingly, the magistrate judge's "Final Judgment" is

vacated and the cause is remanded.7 VACATED and REMANDED