Alex Howard v. Brian Blanchard , 687 F. App'x 406 ( 2017 )

Case: 14-51313 Document: 00513968910 Page: 1 Date Filed: 04/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-51313
Fifth Circuit
FILED
April 26, 2017
ALEC JARAUN HOWARD, Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
ASSISTANT WARDEN BRIAN P. BLANCHARD, Individually and in his
Official Capacity; ASSISTANT WARDEN JIMMY SMITH, Individually and in
his Official Capacity; WARDEN EDWARD SMITH, Individually and in his
Official Capacity; REGIONAL DIRECTOR GILBERT CAMPUZANO;
ASSISTANT REGIONAL DIRECTOR F. FUSTER; ET AL,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:13-CV-327
Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
Alex JaRaun Howard, Texas prisoner # 1684856, moves this court for
leave to proceed in forma pauperis (IFP) in this interlocutory appeal of the
magistrate judge’s denial of his request for appointed counsel. We must always
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-51313 Document: 00513968910 Page: 2 Date Filed: 04/26/2017
No. 14-51313
be cognizant of our jurisdiction and must examine this issue sua sponte if
necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
We have jurisdiction to review only final decisions and specific types of
interlocutory orders that are covered by the collateral order doctrine. See 28
U.S.C. §§ 1291, 1292; Davis v. East Baton Rouge Parish Sch. Bd., 78 F.3d 920,
925-26 (5th Cir. 1996). Unless the parties have consented to proceed before a
magistrate judge pursuant to 28 U.S.C. § 636(c)(1), an order issued by a
magistrate judge is typically not a final order directly appealable to this court.
Donaldson v. Ducote, 373 F.3d 622, 624–25 (5th Cir. 2004). Because Howard
did not so consent, the magistrate judge’s denial of his IFP motion is not a final
appealable order, and his IFP motion in this court is premature. See id.
The magistrate judge’s denial of Howard’s request for appointed counsel
likewise is not a final appealable order. A district court’s order denying the
appointment of counsel in a civil rights action may be appealed immediately.
Robbins v. Maggio, 750 F.2d 405, 413 (5th Cir. 1985). However, if a litigant
seeks to challenge a magistrate judge’s denial of a request for counsel, he must
first do so in the district court, unless the parties have consented to proceed
before the magistrate judge. See Fountain v. Rupert, 654 F. App’x 195, 195
(5th Cir. 2016). Because Howard did not appeal the magistrate judge’s denial
of his request for appointed counsel to the district court, this court lacks
jurisdiction to consider Howard’s interlocutory appeal from that order. Id.
Howard’s IFP motion is DENIED, and this appeal is DISMISSED for
want of jurisdiction.
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