IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-10693 Conference Calendar

AMADOR RODRIGUEZ,

Plaintiff-Appellant,

versus

TDCJ-ID; WAYNE SCOTT, Director; LESLIE W. WOODS, Warden; TERRY EASON, Health Administ.; ANGELA C. SNEED, Guard; ALEXANDER P. KALMONOV, Doctor; JOHN WILSON, Physician Assist.,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 7:97-CV-62-X - - - - - - - - - -

October 19, 1999

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

This court must examine the basis of its jurisdiction on its

own motion if necessary. Mosley v. Cozby,

(5th

Cir. 1987). The summary judgment from which this appeal is taken

was issued by the magistrate judge in accordance with the

district court’s order of reference under

(c).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-10693 -2-

The record does not reflect, however, that Amador Rodriguez

consented to entry of judgment by the magistrate judge.

When the magistrate judge enters judgment pursuant to

§ 636(c), the absence of consent results in a “lack of

jurisdiction (or at least fundamental error that may be

complained of for the first time on appeal).” Mendes Junior

Int’l Co. v. M/V SOKAI MARU,

(5th Cir. 1992);

see United States v. Muhammad,

(5th Cir.),

cert. denied,

(1999). Consent must be on the

record and cannot be implied. Muhammad,

. Lack

of consent cannot be waived. EEOC v. West Louisiana Health

Serv., Inc.,

, 1281-82 (5th Cir. 1992). Further,

the plaintiff’s notice of appeal from the magistrate judge’s

summary judgment is addressed to “the Honorable Judge” of the

district court, not to this court.

The appeal is DISMISSED for lack of appellate jurisdiction.

Because the court lacks jurisdiction, all pending motions are

DENIED.

APPEAL DISMISSED; MOTIONS DENIED.