Opinion
Civil Action No. 3:04-CV-1414-H.
March 31, 2005
MEMORANDUM OPINION AND ORDER
This matter is before me on the appeal of the plaintiff William M. Risby ("Risby") from an order of the United States Magistrate Judge, dated March 15, 2005, denying his request for appointment of counsel. In his appeal, filed March 25, 2005, Risby asked that the magistrate judge's order be reviewed by me as chief judge. By order of March 28, 2005, the Honorable Barefoot Sanders, the senior district judge presiding over this case, recused himself from handling the appeal, and referred the appeal to me for such further action as I deem appropriate.
Judge Sanders did not recuse himself from the entire case, but only from determination of this appeal.
Before reaching the merits of the appeal, I note that ordinarily I, as chief judge, would have no power to grant the review sought by Risby, despite his request that the chief judge decide the appeal. According to Rule 72(a), F.R. CIV. P., the power to review a magistrate judge's order resides in the "district judge to whom the case is assigned," in this instance Judge Sanders. I have no authority as chief judge to sit in appellate review of Judge Sanders' decisions. See In re McBryde, 117 F.3d 208 (5th Cir. 1997) at 223 ("Chief Judge Buchmeyer as a district judge lacks the power of appellate review over his fellow district judges") and at 225-26 ("the chief judge cannot sit as a quasi-appellate court and review the decisions of other judges in the district via his § 137 assignment power"), cert. denied sub nom., Judicial Council of the Fifth Judicial Circuit v. McBryde, 524 U.S. 937 (1998). What takes this case out of the ordinary rule, however, is that Judge Sanders, as the presiding judge, has transferred this appeal to me "for such further action as [I] deem appropriate."
The review of a magistrate judge's order on a non-dispositive pretrial matter is governed by Rule 72(a), F.R. CIV. P., which authorizes a district judge (ordinarily, as stated above, the district judge presiding over the case) to "modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Risby has not shown that the March 15 order of the magistrate judge is clearly erroneous or contrary to law. Accordingly, his appeal of that order is DENIED.
This case shall be returned to the docket of the Honorable Barefoot Sanders for further proceedings.