Scott v. Layton ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41373
Summary Calendar
MICHAEL SCOTT,
Plaintiff-Appellant,
versus
STACY D. LAYTON, Coffield Unit,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:97-CV-332
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June 25, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Michael Scott, Texas state prisoner # 683064, appeals from
the dismissal of his civil rights complaint as frivolous. Scott
argues that his consent to proceed before the magistrate judge
for all purposes including final judgment was involuntary because
the district court failed to follow 28 U.S.C. § 636(c)(2) in
obtaining his consent, which required that the clerk of court at
the time the action was filed notify the parties of the
availability of a magistrate judge to exercise jurisdiction over
*
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that this opinion should not be published and is not precedent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.
No. 98-41373
-2-
the case. Scott also argues that the magistrate judge abused her
discretion in denying his motion to alter or amend judgment.
The magistrate judge should have construed Scott’s post-
judgment motion as a Fed. R. Civ. P. 59(e) motion to alter or
amend judgment because the motion was filed within ten days,
excluding weekends, of final judgment. See Harcon Barge Co. v. D
& G Boat Rentals, Inc., 784 F.2d 665, 667-69 (5th Cir. 1986) (en
banc); Fed. R. Civ. P. 6(a); Fed. R. Civ. P. 59(e).
The record demonstrates that Scott voluntarily consented to
proceed before the magistrate judge. This court thus has
jurisdiction over the final judgment. See Mendes Junior Intern.
Co. v. M/V SOKAI MARU, 978 F.2d 920, 922 (5th Cir. 1992).
The magistrate judge did not abuse her discretion in denying
Scott’s Rule 59(e) motion. See Midland West Corp. v. FDIC, 911
F.2d 1141, 1145 (5th Cir. 1990). Scott’s failure-to-protect
claim is one of mere negligence. Neals v. Norwood, 59 F.3d 530,
533 (5th Cir. 1995).
AFFIRMED.