Stallings v. Ritter , 345 F. App'x 366 ( 2009 )


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  •                                                                              FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    September 17, 2009
    TENTH CIRCUIT                    Elisabeth A. Shumaker
    Clerk of Court
    ROBERT E. STALLINGS,
    Plaintiff - Appellant,
    v.                                                         No. 09-1175
    (D. Colo.)
    GOVERNOR BILL RITTER, JR.;                    (D.C. No. 1:08-CV-00033-CMA-KLM)
    ARISTEDES W. ZAVARAS, Ex. Dir;
    MICHAEL E. ARELLANO, Warden;
    BETH KLINGENSMITH, Provider;
    ROBERT CHAPMAN, CPT;
    LABAZZETTA, L.T.; PAULA
    FRANTZ, M.D.; RITA FRITZ, SGT;
    WINGARD, CO; and J. LARIMORE,
    CPT, all individually and in their
    official capacities.
    ORDER AND JUDGMENT *
    Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    *
    This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
    to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
    except when related to law of the case, issue preclusion or claim preclusion. Any citation
    to an order and judgment must be accompanied by an appropriate parenthetical notation --
    (unpublished). 10th Cir. R. 32.1(A).
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1. The case is therefore
    ordered submitted without oral argument.
    Robert E. Stallings, a former state prisoner appearing pro se, 1 appeals from
    the magistrate judge’s post-judgment order denying his motion for an extension of
    time to respond to the magistrate judge’s earlier order partially converting
    Defendants’ motion to dismiss into a motion for summary judgment. We dismiss
    this appeal for lack of jurisdiction and deny Stallings’ motion to proceed in forma
    pauperis (ifp).
    I. BACKGROUND
    On January 7, 2008, Stallings filed a pro se complaint pursuant to 28
    U.S.C. § 1343 and 42 U.S.C. § 1983 against ten individuals alleging his rights
    under the First and Eighth Amendments were violated when prison officials failed
    to provide him with a vegan kosher diet, pressured him to change his religious
    beliefs, harassed him due to his religious beliefs and denied him corrective hip
    surgery. Defendants filed a motion to dismiss arguing, inter alia, Stallings’ first
    three claims should be dismissed because he failed to exhaust his administrative
    remedies.
    On July 31, 2008, the magistrate judge entered an order converting
    Defendants’ motion to dismiss into a motion for summary judgment solely as to
    1
    We liberally construe Stallings’ pro se filings. See Ledbetter v. City of Topeka,
    Kan., 
    318 F.3d 1183
    , 1187 (10th Cir. 2003).
    -2-
    the issue of exhaustion of administrative remedies. The judge granted the parties
    ten days to submit additional materials outside the pleadings pertaining to the
    issue of exhaustion. Stallings submitted sixty-seven pages of additional
    materials.
    On August 22, 2008, the magistrate judge issued a report and
    recommendation (R&R). It suggested Stallings’ first, second and third claims be
    dismissed without prejudice for failure to exhaust administrative remedies.2
    Stallings filed an objection to the R&R on September 2, 2008. On November 14,
    2008, the district court adopted the R&R over his objection. Judgment was
    entered in favor of Defendants on November 17, 2008. He did not appeal.
    On April 2, 2009, Stallings filed a “motion to request extension of time”
    seeking “an order extending the time to respond to the court’s order entered July
    31, 2008.” (R. Vol. I at 283.) On April 3, 2009, the magistrate judge denied his
    request. The judge explained: “[Stallings] was incarcerated at the time of the July
    31 order and at the time of the August 14 deadline to respond. His subsequent
    alleged release, homelessness, and mental and physical problems do not state
    good cause for extension of a deadline he was required to meet before his
    release.” (Id. at 286.) On April 22, 2009, Stallings filed a notice of appeal.
    2
    The judge also recommended Stallings’ fourth claim for relief be dismissed with
    prejudice for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of
    Civil Procedure.
    -3-
    II. DISCUSSION
    A. Jurisdiction
    In both his notice of appeal and his opening brief, Stallings states he is
    appealing from the magistrate judge’s order, dated April 3, 2009, denying his
    motion for an extension of time. 3 Before we consider the merits of Stallings’
    appeal, we must examine our own jurisdiction. See Amazon, Inc. v. Dirt Camp,
    Inc., 
    273 F.3d 1271
    , 1274 (10th Cir. 2001) (“[W]e have an independent duty to
    examine our own jurisdiction.”). We must determine whether the magistrate
    judge’s April 3, 2009 order is final and appealable for purposes of 28 U.S.C.
    § 1291, which provides in pertinent part: “The courts of appeals . . . shall have
    jurisdiction of appeals from all final decisions of the district courts of the United
    States . . . .” 4
    A party can generally appeal from a post-judgment order entered by the
    district court if it is final and otherwise unreviewable. See, e.g., Allen v.
    Minnstar, Inc., 
    8 F.3d 1470
    , 1473-74 (10th Cir. 1993) (denial of post-judgment
    3
    Though we ultimately do not reach the issue, it is hard to imagine how Stallings’
    motion for an extension of time to respond to an order entered months prior is a
    cognizable post-judgment motion, particularly in light of intervening events – the
    magistrate’s R&R, Stallings’ opposition to it and the court’s adoption of it. See Fed. R.
    Civ. P. 60 (stating the various grounds for relief from a judgment or order).
    4
    Defendants state they do not contest this Court’s jurisdiction to review the
    magistrate judge’s order pursuant to 28 U.S.C. § 1291 This does not resolve the matter as
    “[j]urisdiction cannot be conferred by consent nor waived by inaction.” Demulso Corp. v.
    Tretolite Co., 
    74 F.2d 805
    , 807 (10th Cir. 1934).
    -4-
    motion to supplement the record was appealable because it finally decided a
    separately reviewable matter). However, the April 3, 2009 order was entered by
    the magistrate judge without review by the district court. “Federal magistrate
    judges are creatures of statute, and so is their jurisdiction. Unlike district judges,
    they are not Article III judicial officers, and they have only the jurisdiction or
    authority granted to them by Congress, which is set out in 28 U.S.C. § 636.”
    Phillips v. Beierwaltes, 
    466 F.3d 1217
    , 1222 (10th Cir. 2006) (quotations
    omitted). Where, as here, the parties did not consent to proceed before a
    magistrate judge, “the district court may designate a magistrate judge to consider
    various matters.” 
    Id. (quotations omitted).
    For nondispositive pretrial matters,
    the district court retains statutory power to review a magistrate judge’s decision.
    See 28 U.S.C. § 636(b)(1)(A). A pretrial order entered by a magistrate judge that
    has not been reviewed by the district court is generally not an appealable order.
    See 
    Phillips, 466 F.3d at 1222
    .
    28 U.S.C. § 636 does not directly address a magistrate judge’s authority to
    enter post-judgment motions. It does, however, authorize a district court to
    assign to a magistrate judge “such additional duties as are not inconsistent with
    the Constitution and the laws of the United States.” 28 U.S.C. § 636(b)(3). It
    does not appear the magistrate judge was granted authority by the district court to
    enter a final decision on Stallings’ motion for an extension of time. In any case,
    we have held that where a magistrate judge enters an order pursuant to
    -5-
    § 636(b)(3), including a post-judgment order, the order remains under the
    supervision of the district court judge who “retains the ultimate responsibility for
    decision making in every instance.” Colo. Bldg. & Constr. Trades Council v.
    B.B. Andersen Constr. Co., 
    879 F.2d 809
    , 811 (10th Cir. 1989) (quotations
    omitted).
    Because the magistrate judge was not authorized to render a final
    appealable decision within the meaning of 28 U.S.C. § 1291, we are not
    empowered to address the merits of Stallings’ appeal from the April 3, 2009 order
    until the district court has reviewed the magistrate judge’s proposed ruling in
    favor of Defendants.
    B. Motion to Proceed IFP
    Stallings filed a motion and affidavit for leave to proceed ifp on appeal.
    The district court denied this motion pursuant to 28 U.S.C. § 1915(a)(3) because
    it found “this appeal is not taken in good faith because [Stallings] has not shown
    the existence of a reasoned, nonfrivolous argument on the law and facts in support
    of the issues raised on appeal.” (Id. at 302.) Stallings has filed a renewed motion
    to proceed ifp with this Court.
    To proceed ifp on appeal “an appellant must show a financial inability to
    pay the required filing fees and the existence of a reasoned, nonfrivolous
    argument on the law and facts in support of the issues raised on appeal.”
    DeBardeleben v. Quinlan, 
    937 F.2d 502
    , 505 (10th Cir. 1991) (emphasis added).
    -6-
    We have reviewed Stallings’ application to proceed ifp, his opening brief and the
    district court record and determined Stallings has filed an “action or appeal [that]
    . . . is frivolous . . . .” 5 See 28 U.S.C. § 1915(e)(2)(B)(i). We therefore DENY
    Stallings’ motion to proceed ifp. He must immediately pay the filing fee in full.
    See Kinnell v. Graves, 
    265 F.3d 1125
    , 1129 (10th Cir. 2001) (dismissal of appeal
    does not relieve a party from the responsibility to pay the appellate filing fee).
    He shall be given credit for any payments previously made in this case. 6
    We DISMISS this appeal for lack of jurisdiction, DENY Stallings’ motion
    to proceed ifp and DENY all other motions pending before this Court.
    Entered by the Court:
    Terrence L. O’Brien
    United States Circuit Judge
    5
    In addition, we note Stallings’ motion to proceed ifp contains a material
    misstatement of fact. In his motion, Stallings states he had an average balance of $0 in
    his prisoner trust account for the previous six months. The prison official refused to sign
    the certified trust account statement because Stallings did not have an average balance of
    $0. As reflected in the trust account statement attached to his motion, Stallings’ balance
    ranged from $0 to $358.63.
    6
    On May 27, 2009, the Clerk of this Court issued an Order directing Stallings to
    make partial payments towards the filing fee.
    -7-