*

 This order and judgment is not binding precedent. 10th Cir. R. 32.1(A).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(unpublished). 10th Cir. R. 32.1(A).

FILED

United States Court of Appeals

Tenth Circuit

September 17, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT E. STALLINGS,

Plaintiff - Appellant,

v.

GOVERNOR BILL RITTER, JR.;

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.

No. 09-1175 

(D. Colo.)

(D.C. No. 1:08-CV-00033-CMA-KLM)

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
1

 We liberally construe Stallings’ pro se filings. See Ledbetter v. City of Topeka,

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

-2-

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
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.

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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.
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-

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
-5-

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
-6-

§ 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). 
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-

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