                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         May 16, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
ANDREW JOHN YELLOWBEAR, JR.,

      Plaintiff - Appellant,

v.                                                        No. 16-8125
                                                 (D.C. No. 2:16-CV-00153-ABJ)
SETH NORRIS, Captain, Wyoming                               (D. Wyo.)
Medium Correctional Institution,
individually and in his official capacity;
CURTIS MOFFAT; MICHAEL
MCMANIS; CHERYL BECKER;
CASEWORKER MCMANIS;
SERGEANT FARRELL; JULIE
TENANT-CAINE; SERGEANT M.
MCCLAIN; RUBY ZIEGLER; DANIEL
SHANNON; DONALD W. TAYSON,
individually,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
                  _________________________________




       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Andrew John Yellowbear, Jr., a pro se Wyoming inmate, appeals the district

court’s revocation of his in forma pauperis (IFP) status and three other adverse rulings.1

Defendants move to dismiss the appeal, asserting we lack jurisdiction to consider the

challenged rulings because none constitute final appealable orders. We agree with

defendants and grant the motion to dismiss for want of jurisdiction.

                                             I

       Mr. Yellowbear filed this action under 42 U.S.C. § 1983, alleging violations of his

constitutional and statutory rights. He moved to proceed IFP, averring that the only

income he had received during the previous twelve months was $40 per month from the

Department of Interior. To substantiate his claimed indigence, Mr. Yellowbear attached

a copy of his inmate trust fund account statement from December 1, 2015, through May

26, 2016, reflecting an ending balance of $97.72. Based on this information, the district

court granted his request to proceed IFP.

       Defendants subsequently moved to dismiss, claiming Mr. Yellowbear’s allegation

of poverty was untrue. They pointed out that on August 24, 2015, he received a deposit

in his account for $17,483.30 and misrepresented total income of over $19,000 during the

previous twelve months. Mr. Yellowbear responded that he was indigent when he sought

IFP status and 28 U.S.C. § 1915(a)(2) states that courts should only consider the previous

six months of an inmate’s finances, not twelve months. Additionally, Mr. Yellowbear


       1
       We afford Mr. Yellowbear’s pro se materials a solicitous construction but do
not advocate on his behalf. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir.
2009).

                                             2
asserted the money was not income, but rather probate funds derived from oil and gas

royalties payable to certain Indian tribe members. He argued that under federal law,

these distributions are exempt from any lien or claim. Defendants filed a reply, and

Mr. Yellowbear moved to file a sur-reply. He also requested a hearing on the motion to

dismiss and moved to set a deadline for any potential intervention.

       These proceedings resulted in four adverse rulings, which Mr. Yellowbear seeks to

challenge on appeal. First, the court denied him leave to file a sur-reply. Second, a

magistrate judge denied his motion to set a deadline for intervention. Third, the district

court denied defendants’ motion to dismiss the suit. Although the court recognized that

28 U.S.C. § 1915(e)(2)(A) requires a court to “dismiss the case at any time if [it]

determines that . . . the allegation of poverty is untrue,” the court held that dismissal with

prejudice was too severe a sanction for Mr. Yellowbear’s misrepresentation.

Nevertheless, the court ruled that Mr. Yellowbear should have disclosed his receipt of the

funds and argued that he still qualified for IFP status. The court therefore directed

Mr. Yellowbear to pay the required filing fee by December 5, 2016 or have his suit

dismissed with prejudice. Finally, in the same order, the court denied his request for a

hearing as moot. Mr. Yellowbear designated these rulings in his notice of appeal.

       To date, Mr. Yellowbear has not paid the district court filing fee, but neither has

the court dismissed the suit. There is also an outstanding motion for partial summary

judgment pending in the district court. Given this posture, defendants have moved to

dismiss this appeal, arguing there is no final order before this court and Mr. Yellowbear

is not barred from proceeding in the district court. They say the district court simply

                                              3
revoked Mr. Yellowbear’s IFP status and directed him to pay his filing fee. Defendants

assert he could pay the fee and then, if the court were to dismiss the action, challenge

both the dismissal and revocation of IFP on direct appeal.2 For his part, Mr. Yellowbear

construes the order revoking IFP as an order denying IFP, which he points out is usually

an immediately appealable collateral order. Similarly, he asserts the other contested

rulings also are appealable collateral orders.

                                                 II

       Courts of appeals have jurisdiction to review final decisions of the district courts.

See 28 U.S.C. § 1291. Although the denial of a motion to proceed IFP is not a final

order, it is immediately appealable under the Cohen doctrine. See Roberts v. United

States Dist. Court, 339 U.S. 844, 845 (1950) (per curiam) (citing Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541 (1949)); Lister v. Dep’t of Treasury, 408 F.3d 1309,

1310-11 (10th Cir. 2005). “If a truly indigent claimant is not granted IFP status, she is

barred from proceeding at all in the district court.” Lister, 408 F.3d at 1311. In this way,

the denial of IFP “constitute[s] a complete, formal, and in the trial court, final rejection of

a claimed right where denial of immediate review would render impossible any review

whatsoever.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376 (1981) (citation

and internal quotation marks omitted).


       2
         Alternatively, defendants argue in their merits brief that the IFP issue is moot
because Mr. Yellowbear has accrued three strikes under 28 U.S.C. § 1915(g). We do not
reach this alternative jurisdictional issue and decide this appeal solely on finality grounds.
Cf. D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1229 (10th Cir. 2004) (“We may
address jurisdictional issues in any order we find convenient.”).

                                                 4
       We have recognized, however, that where the denial of IFP does not bar a

claimant from proceeding in the district court, the order does not fall under the Cohen

doctrine. See Burnett v. Miller, 507 F. App’x 796, 798 (10th Cir. 2013) (unpublished).3

In Burnett, the district court denied IFP because the inmate had accrued three strikes

under 28 U.S.C. § 1915(g). See 507 F. App’x at 797. The inmate appealed the denial of

IFP, but paid the district court filing fee before that court dismissed his case. Id. at 798.

We dismissed the appeal because the order denying IFP did not “bar[] [the inmate] from

proceeding at all in the district court.” Id.

       Mr. Yellowbear is in a similar situation here. Although he has not paid the district

court filing fee, the court has not dismissed his case and it remains pending. Moreover,

regardless of whether the oil and gas distributions are exempt or whether the district court

should have looked beyond the preceding six months prescribed by § 1915(a)(2) (both of

which are merits issues that we do not consider), Mr. Yellowbear does not deny that he

received the funds and does not contend that he cannot pay the necessary fees.

Therefore, he is not “barred from proceeding at all in district court.” Lister, 408 F.3d at

1311. Presumably, if and when the district court dismisses the suit for failure to pay the

filing fee—or even if Mr. Yellowbear cannot pay the fee and as a result the court

dismisses the action—he will then be able to take an appeal to this court from the

       3
         Although unpublished orders are generally non-binding, except under the
doctrines of law of the case, res judicata, and collateral estoppel, they “may be relied
on for the purpose of disposing of the issue presented if it has persuasive value with
respect to a material issue in a case and would assist the court in its disposition.”
United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015); see 10th Cir. R.
32.1(A).

                                                5
dismissal order. But we need not speculate on those possibilities because at present the

case continues in the district court and Mr. Yellowbear has not been precluded from

obtaining any review whatsoever. See Arney v. Finney, 967 F.2d 418, 422 (10th Cir.

1992) (“[U]nder the Cohen doctrine, where the denial of immediate review does not

render impossible any review whatsoever, i.e., where rights will not be irretrievably lost

in the absence of an immediate appeal, collateral review is not available.” (internal

quotation marks omitted)).

       The other contested rulings also lack finality. The denial of a hearing on the

motion to dismiss was not a final order. See id. Nor was the order denying leave to file a

sur-reply. See Smith ex rel. Thomas v. United States, 340 F. App’x 918, 919 (4th Cir.

2009) (per curiam) (unpublished). This leaves the magistrate judge’s order denying the

motion to set a deadline for potential intervenors. A magistrate judge’s jurisdiction is

prescribed by statute, see 28 U.S.C. § 636, and absent consent of the parties, id.

§ 636(c)(1), the district court may designate a magistrate judge to consider certain

dispositive or non-dispositive matters, id. § 636(b). See First Union Mortg. Corp. v.

Smith, 229 F.3d 992, 995 (10th Cir. 2000).

       [A] magistrate judge’s authority with respect to each category is
       different: Magistrates may issue orders as to non-dispositive pretrial
       matters, and district courts review such orders under a “clearly
       erroneous or contrary to law” standard of review. 28 U.S.C.
       § 636(b)(1)(A). While magistrates may hear dispositive motions,
       they may only make proposed findings of fact and recommendations,
       and district courts must make de novo determinations as to those
       matters if a party objects to the magistrate’s recommendations.
       Id. § 636(b)(1)(B), (C).



                                             6
Id. (internal quotation marks omitted). “[A] magistrate [judge] is not authorized to render

final appealable decisions within the meaning of 28 U.S.C. § 1291, absent both

designation by the district court and consent of the parties under 28 U.S.C. § 636(c),”

Colo. Bldg. & Constr. Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809, 811

(10th Cir. 1989). Here, the magistrate judge rendered a non-dispositive order denying

Mr. Yellowbear’s motion to set a deadline for intervention. This was not a final

appealable order, and it provided no basis for our appellate jurisdiction. Absent a proper

basis for exercising jurisdiction, we must dismiss this appeal.

                                            III

       Accordingly, we grant the motion to dismiss. This appeal is dismissed for lack of

jurisdiction.


                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




                                             7
