Wayne Prater v. Pennsylvania Department of Cor

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

Nos. 19-1732, 20-2254, 20-2897

______

WAYNE PRATER,

Appellant in 19-1732

v.

DEPARTMENT OF CORRECTIONS, PA D.O.C.; BARRY

SMITH, Superintendent at SCI Houtzdale; KENNETH

HOLLIBAUGH, Deputy Superintendent at SCI Houtzdale;

DAVID CLOSE, Deputy Superintendent at SCI Houtzdale;

REBECCA REIFER, Superintendent Assistant at SCI

Houtzdale; MICHELLE IVICIC, Corrections Classifications

& Program Manager (CCPM); JANET PEARSON,

Corrections Health Care Administrator (CHCA); DR.

MUHAMMAD NAJI, Medical Director at SCI Houtzdale;

JOSEPH H. DUPONT, Chief Hearing Examiner; JOSEPH J.

SILVA, Director Health Bureau Care Services; ADREN

SMITH, Director Health Care Services; FREDDY NUNEZ,

Hearing Examiner; DORINA VARNER, Chief Grievance

Officer; KERI MOORE, Grievance Officer; JOEL

BARROWS, Major at SCI Houtzdale; K. SHEA, Security

Captain at SCI Houtzdale; T. KNOWLES, Captain at SCI

Houtzdale; CO 1 MOONEY, Lieutenant (Lt.) SCI Houtzdale;

C.O. KELLY, Lieutenant (Lt.) at SCI Houtzdale; CHIEF

JAMES, Lieutenant (Lt.) SCI Houtzdale; PEGGY BARNS,

Physician Assistant (P/A) at SCI Houtzdale; ELIZABETH

JURY, Nurse at SCI Houtzdale;

RICHARD or RICH, Male Nurse at SCI Houtzdale; DAREN

GINTER, Unit Manager at SCI Houtzdale; WILLIAM

NORVELL, Maintenance Supervisor at SCI Houtzdale;

POBORSKI, Sergeant (Sgt.) at SCI Houtzdale; LARUE,

Sergeant (Sgt.) at SCI Houtzdale; G. Cogan, Counselor at SCI

Houtzdale; DUFORE, Correctional Officer (C/O) at SCI

Houtzdale; FLORA, Correctional Officer (C/O) at SCI

Houtzdale;

MR. MAINES, Correctional Officer (C/O) at SCI Houtzdale;

LONG, Correctional Officer (C/O) at SCI Houtzdale

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 3-19-cv-00019)

Magistrate Judge: Honorable Keith A. Pesto

______

AARON VAUGHN,

Appellant in No. 20-2254

v.

CORRECTION OFFICER IMOHOFF, (Pod Officer of F-B

Pod from 11/10/16 - 3/15/17); SERGEANT TIKEY, (Sgt. of

F-B Pod 6 to 2am shift); CORRECTION OFFICER GILL;

CORRECTION OFFICER CARTER, (Pod Officer of F-B

2

Pod from 11/10/16 - 3/15/17); LIEUTENANT SCHAMP,

(RHU Lt. 2-10pm shift); CORRECTION OFFICER

STECKLY, (Pod Officer of F-B Pod 2-10pm shift);

CORRECTION OFFICER TUSCANO, (Pod Officer of F-B

Pod 2-10pm shift); JOHN DOE, (Co-worker with CO Gill on

11/10/16); CORRECTION OFFICER W. PEREZ-RAMOS

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-17-cv-00546)

Magistrate Judge: Honorable Lisa P. Lenihan

______

ISAAC RAY VAUGHAN, JR.,

Appellant in No. 20-2897

v.

ALBION SCI; C.O. BOYD, Guard; C.O. WOODS; C.O.

CAMRON; C.O. MCINTOSH; C.O. W. CHRISTOPHER;

C.O. ARNOLD; MR. LANCE, Unit Man.;

MS. NORTIN, Counselor; MS. HERMAN; MS. SNOW,

Psych;

MS. RICHARDS, Psych; SUPERINTENDENT MICHAEL

CLARK;

C.O. MAKENEY; C.O. SEVERO

______

On Appeal from the United States District Court

3

for the Western District of Pennsylvania

(D.C. No. 1-18-cv-00116)

Magistrate Judge: Honorable Richard A. Lanzillo

______

Argued on April 20, 2023

Before: HARDIMAN, PORTER and FISHER, Circuit

Judges.

(Filed: August 2, 2023)

Wayne Prater

#KV-1019

Houtzdale SCI

P.O Box 1000

209 Institution Drive

Houtzdale, PA 16698

Pro Se, Case No. 19-1732

Aaron Vaughn

#KW-3603

Huntingdon SCI

1100 Pike Street

Huntingdon, PA 16654

Pro Se, Case No. 20-2254

Isaac Ray Vaughan, Jr.

#JF-0037

Albion SCI

10745 Route 18

Albion, PA 16475

Pro Se, Case No. 20-2897

4

Michelle Henry, Attorney General

Sean A. Kirkpatrick ARGUED

Office of Attorney General of Pennsylvania

Strawberry Square 15th Floor

Harrisburg, PA 17120

Counsel for Amicus Curiae Case No. 19-1732

James S. Ballenger

Samuel Gerstemeier ARGUED

Tristan Locke ARGUED

University of Virginia School of Law

580 Massie Road

Charlottesville, VA 22903

Counsel for Amicus Curiae Appellant Case Nos. 19-

1732, 20-2254 and 20-2897

Michelle Henry, Attorney General

Howard G. Hopkirk

Michael J. Scarinci

Office of Attorney General of Pennsylvania

Strawberry Square 15th Floor

Harrisburg, PA 17120

Daniel B. Mullen ARGUED

Office of Attorney General of Pennsylvania

1251 Waterfront Place

Mezzanine Level

Pittsburgh, PA 15222

Counsel for Appellees Case Nos. 20-2254 and 20-2897

______

OPINION OF THE COURT

5

______

FISHER, Circuit Judge.

Wayne Prater, Isaac Vaughan, Jr., and Aaron Vaughn

each challenge an order entered by a magistrate judge in their

42 U.S.C. § 1983 cases. A magistrate judge involuntarily

dismissed Prater’s case without prejudice for failure to

prosecute, while the magistrate judges in Isaac’s and Aaron’s

cases entered summary judgment for all defendants.1

Primarily at issue on appeal is whether the magistrate

judges acted within the scope of their statutorily granted

jurisdiction under 28 U.S.C. § 636. Section 636 is both

innovative and limited. It was intended to lighten the load

carried by district court judges by granting some preliminary

and final decision-making authority to magistrate judges.

However, to protect the purpose of Article III and citizens’

right to an independent, life-tenured decisionmaker, § 636

places precise limits on a magistrate judge’s jurisdiction absent

parties’ consent. For example, a magistrate judge can oversee

pretrial discovery even without the consent of the parties, but

he cannot grant summary judgment or involuntarily dismiss a

case. However, those limits dissolve if the parties voluntarily

consent to a magistrate judge’s final judgment jurisdiction

under § 636(c)(1).

Thus, the magistrate judges’ jurisdiction to enter final

orders in each of these three cases turns on the parties’ consent.

We will dismiss Prater’s appeal for lack of jurisdiction because

all parties did not consent and, therefore, the magistrate judge

1

Isaac and Aaron have almost identical last names, so

we use their first names to avoid confusion.

6

lacked the power to involuntarily dismiss the case. When a

magistrate judge lacks jurisdiction, so do we. By contrast, the

magistrate judges were empowered to enter summary

judgment in Isaac’s and Aaron’s cases because all parties either

expressly or impliedly consented. Therefore, we have

jurisdiction and will affirm summary judgment based on the

plaintiffs’ failure to exhaust administrative remedies.

This consolidated case concerns three appeals from

orders entered by magistrate judges in the Western District of

Pennsylvania.

a. Wayne Prater

Wayne Prater, a prisoner at State Correctional

Institution Houtzdale, tore his Achilles tendon in an accident

in July 2016. In February 2019, he filed a complaint against the

Pennsylvania Department of Corrections (DOC) and thirty-one

prison officials. Along with his complaint, Prater filed a motion

to proceed in forma pauperis and a consent to jurisdiction

form, choosing to proceed before a magistrate judge under

§ 636(c)(1) for any and all further proceedings in lieu of

proceeding before a district court judge. Prater alleged prison

officials showed “deliberate indifference to a serious medical

need” and “intentional[ly] inflict[ed]” “unnecessary and

wanton pain” by delaying his Achilles surgery for months,

threatening his life by administering allergenic medication,

denying him adequate pain medication, and exposing him to

7

conditions that risked re-injury. JA Prater 27.2 Prater sought

compensatory and punitive relief for these alleged ongoing

violations of his First, Fourth, Eighth, and Fourteenth

Amendment rights. In addition, Prater sought relief related to

a misconduct violation he received for improperly contacting

his children.

The Western District assigned the case to a magistrate

judge. The magistrate judge denied Prater’s IFP motion under

the Prison Litigation Reform Act (PLRA), which does not

permit inmates to proceed IFP if they have three strikes—i.e.,

three actions or appeals dismissed because they are “frivolous,

malicious, or fail[] to state a claim upon which relief may be

granted.” 28 U.S.C. § 1915(g). According to the magistrate

judge, Prater’s previous lawsuits amounted to four strikes. And

the magistrate judge concluded that Prater did not qualify for

the three-strikes exception for prisoners who are “under

imminent danger of serious physical injury.” Id. Therefore,

Prater could proceed with his claims only “upon payment of

the full filing fee.” JA Prater 5. The magistrate judge also stated

that Prater’s complaint impermissibly joined “unrelated claims

and defendants” that did “not share common questions of law

or fact” or “arise out of the same series of occurrences,” so he

ordered any subsequent complaint to comply with federal

joinder rules. JA Prater 5; see also Fed. R. Civ. P. 20(a)(2).

Prater did not file an amended complaint or pay the full filing

fee, so on February 28, 2019, the magistrate judge dismissed

Prater’s case “without prejudice for failure to prosecute (failure

to pay the filing fee).” JA Prater 6. Prater appealed.

2

Separate appendices were filed in each appeal. We cite

them as “JA [name] [page].”

8

b. Isaac Vaughan, Jr.

Isaac Vaughan, Jr., a prisoner at SCI Albion, filed a

complaint against the institution in April 2018, alleging that he

was assaulted on two separate occasions by prison officials.

Isaac followed up with an amended complaint, naming SCI

Albion and fourteen individuals. He alleged officials subjected

him to excessive force in violation of his Eighth Amendment

right when he was pepper-sprayed, beaten, shackled, placed on

suicide watch, restrained, drugged, and shocked while guards

ripped off his clothes. In support of his complaint, Isaac stated

that he had properly exhausted administrative remedies

because he “talk[ed] to everyone [he] could” about the

incidents and filed a formal grievance. JA Isaac 67. In his

formal grievance, Isaac offered several reasons why it “took so

long” for him to file one. JA Isaac 237. Even so, his grievance

was rejected as untimely. He did not seek further

administrative review.

Along with his complaint, Isaac filed an IFP motion and

a “consent to jurisdiction” by a magistrate judge under

§ 636(c)(1) in lieu of proceeding before a district court judge.

JA Isaac 42. The magistrate judge granted Isaac’s IFP motion,

permitting him to formally lodge his complaint in May 2018.

Throughout the litigation, the Office of Attorney General—

acting through several deputy AGs who successively staffed

the case—appeared on behalf of all defendants and waived

service of process. The initial deputy AG on the case also filed

a form consenting to magistrate judge jurisdiction under

§ 636(c)(1) on behalf of SCI Albion—the only named

defendant at the time. The defendants eventually deposed

Isaac. During his deposition, Isaac admitted that the only

defendants who used force against him during either of the

incidents were Correctional Officers Christopher and Maskrey.

9

All defendants moved for summary judgment. They

argued SCI Albion was immune from suit under the Eleventh

Amendment, and, among other things, Isaac’s claims against

the fourteen officials were not properly exhausted under 42

U.S.C. § 1997e(a) of the PLRA. The magistrate judge agreed

and entered summary judgment in favor of SCI Albion under

the Eleventh Amendment; in favor of the superintendent for

lack of personal involvement in the alleged violation; and in

favor of all other defendants based on failure to exhaust. Isaac

appealed.

c. Aaron Vaughn

Aaron Vaughn, a prisoner at SCI Dallas, filed a

complaint against SCI Greene, over thirty officers, and several

groups of John/Jane Doe defendants in April 2017. He alleged

a variety of violations of his First, Fourth, Fifth, Sixth, Eighth,

and Fourteenth Amendment rights. He filed several amended

complaints. But over time, various claims and defendants fell

out of the case. The main claim at issue on appeal is Aaron’s

excessive force claim that CO Gill and a John Doe co-worker

(later identified as CO Johnston) beat him while transporting

him from one housing unit to another. In support of his

complaint, Aaron stated that he properly exhausted

administrative remedies. Aaron filed a formal grievance about

the incident. DOC initiated an investigation pursuant to policy

and then denied the grievance. Aaron unsuccessfully appealed

once but did not seek final administrative review. Aaron also

detailed the alleged abuse in a “Request to Staff Member”

form. JA Aaron 484.

Along with his complaint, Aaron filed an IFP motion.

After his IFP motion was granted, Aaron filed a “consent to

jurisdiction” by a magistrate judge under § 636(c)(1) in lieu of

proceeding before a district court judge. JA Aaron 135.

10

Throughout the litigation, the Office of Attorney General—

acting through several deputy AGs who successively staffed

the case—appeared on behalf of all defendants and waived

service of process. The initial deputy AG on the case filed a

form consenting to magistrate judge jurisdiction under

§ 636(c)(1) on behalf of SCI Greene and Robert Gilmore—the

only defendants Aaron ordered to be served at the time.

The defendants deposed Aaron and moved for summary

judgment. The magistrate judge entered summary judgment for

CO Gill and CO Johnston, concluding that Aaron failed to

exhaust administrative remedies by not taking a final

administrative appeal. The magistrate judge noted that DOC

maintains two policies for reporting abuse: ADM 001 and

ADM 804. However, she reasoned that only the latter—which

sets forth the formal grievance procedures, including the final

administrative appeal—satisfies the PLRA’s exhaustion

requirements. The magistrate judge also noted that Aaron

failed to substitute and serve CO Johnston as the John Doe co-

worker from his complaint. Nevertheless, she entered summary

judgment in CO Johnston’s favor because Aaron’s excessive

force claim against CO Johnston was “identical” to Aaron’s

claim against CO Gill and “ar[o]se from the same set of

fact[s].” JA Aaron 44. Aaron appealed.

On appeal, Prater, Isaac, and Aaron argue that the

magistrate judges lacked jurisdiction to enter final judgment

orders in their respective cases. Given the similar jurisdictional

issues posed by each of their cases, we consolidated the three

appeals and appointed amicus curiae on behalf of the three

11

prisoners.3 Meanwhile, the Commonwealth participated in all

of the cases but in different capacities. It provided its views by

way of special appearance in Prater’s case—essentially similar

to the role of amicus curiae—and represented the defendants

in Isaac’s and Aaron’s cases.

The magistrate judges’ jurisdiction and our jurisdiction

are the central issues on appeal. The district courts had

jurisdiction under 28 U.S.C. §§ 1331 and 1343. If the

magistrate judges had jurisdiction, it would have been pursuant

to 28 U.S.C. § 636. Our jurisdiction is “contingent upon” the

magistrate judges’ jurisdiction and would flow from

§§ 636(c)(3) and 1291. Burton v. Schamp, 25 F.4th 198, 205

n.9 (3d Cir. 2022). We review de novo whether a magistrate

judge had jurisdiction to issue a final order. Id. And we review

our own jurisdiction de novo. Dewey v. Volkswagen A.G., 681

F.3d 170, 180 (3d Cir. 2012). We conclude that the magistrate

judge in Prater’s case lacked jurisdiction to involuntarily

dismiss his case, but the magistrate judges in Isaac’s and

Aaron’s cases properly exercised final judgment authority.

In 1968, Congress passed the Federal Magistrate Act,

28 U.S.C. § 631 et seq., which abolished the office of United

States commissioner and established the office of magistrate.

Pub. L. No. 90-578, 82 Stat. 1107. It “conferred upon

3

The Court is grateful to the Appellate Litigation Clinic

at the University of Virginia School of Law for its able

representation of the plaintiffs, and in particular thanks J. Scott

Ballenger, Samuel Gerstemeier, and Tristan Locke for their

well-presented and helpful briefs and oral arguments.

12

magistrates all the powers that commissioners had enjoyed” to

settle “minor federal legal disputes,” plus additional duties as

assigned by district courts. Gomez v. United States, 490 U.S.

858, 865–66 (1989). “The Act grew out of Congress’ desire to

give district judges additional assistance in dealing with a

caseload that was increasing far more rapidly than the number

of judgeships.” Thomas v. Arn, 474 U.S. 140, 152 (1985)

(internal quotation marks and citation omitted). Congress

intended magistrate judges “to play an integral and important

role in the federal judicial system.” See Peretz v. United States,

501 U.S. 923, 928 (1991) (calling magistrate judges “nothing

less than indispensable” given district courts’ “bloated

dockets” (quoting Gov’t of the V.I. v. Williams, 892 F.2d 305,

308 (3d Cir. 1989))).4

Under the Act, district court judges may “delegate

certain matters to magistrate judges.” Equal Emp. Opportunity

Comm’n v. City of Long Branch, 866 F.3d 93, 98 (3d Cir.

2017). However, because magistrate judges derive their power

from Article I of the Constitution (establishing the legislative

branch), not Article III (establishing the judicial branch), the

Act “limit[s] the circumstances” in which a magistrate judge

exercises final adjudicatory authority. See Burton, 25 F.4th at

206; see generally U.S. Const. art. II, § 2 (permitting Congress

to “vest the Appointment of such inferior Officers” in “the

Courts of Law”); 28 U.S.C. § 631(a) (providing for

appointment of magistrate judges by district court). The scope

4

In 1990, Congress revised the statute and renamed

“magistrates” as “magistrate judges.” See Judicial

Improvements Act of 1990, Pub. L. No. 101-650, § 321, 104

Stat. 5089.

13

of a magistrate judge’s jurisdiction depends on two factors: the

consent of the parties and the nature of the matter.

The Act permits a district court judge to “designate a

magistrate judge to hear and determine any pretrial matter,”

without the parties’ consent, save eight exceptions, including

“a motion . . . for summary judgment, . . . and to involuntarily

dismiss an action.” 28 U.S.C. § 636(b)(1)(A). The Federal

Rules implementing the Act call pretrial matters that may be

referred to a magistrate judge without parties’ consent

“nondispositive.” Fed. R. Civ. P. 72(a). If a party disagrees

with the magistrate judge’s decision on such matters, the party

may timely object, after which the district court “must . . .

modify or set aside any part of the order that is clearly

erroneous or is contrary to law.” Id.; see also 28 U.S.C.

§ 636(b)(1)(A).

In matters a magistrate judge does not have the power

to “determine” without the parties’ consent—pretrial motions

excepted under § 636(b)(1)(A), “applications for posttrial

relief” in criminal cases, and “prisoner petitions challenging

conditions of confinement”—a judge may “designate a

magistrate judge to conduct hearings . . . and to submit to a

judge of the court proposed findings of fact and

recommendations” for disposition. 28 U.S.C. § 636(b)(1)(B).

The Federal Rules call these matters “dispositive.” Fed. R. Civ.

P. 72(b). A party may file timely objections to the magistrate

judge’s findings or recommendations. The district court “shall”

review de novo any timely objections and “may accept, reject,

or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.”5 28 U.S.C.

5

A party’s failure to timely object to a magistrate

judge’s recommendation may cause the party to lose the right

14

§ 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). Whether or not

objections are filed, the district court “must take some action

for a report and recommendation to become a final order”;

thus, the district court retains final adjudicatory authority.

EEOC, 866 F.3d at 100.

In addition, the Act provides that “[u]pon the consent of

the parties,” a magistrate judge “may conduct any or all

proceedings in a jury or nonjury civil matter and order the entry

of judgment in the case.” 28 U.S.C. § 636(c)(1); see also Fed.

R. Civ. P. 73.

So absent party consent, a magistrate judge’s

jurisdiction extends only to nondispositive pretrial matters.

Outside those nondispositive pretrial matters, the magistrate

judge makes findings of fact and provides the district court

with non-final recommendations. But when there is party

consent, the magistrate judge’s jurisdiction is coextensive with

the district court’s jurisdiction, extending to any or all

proceedings, including entry of final judgment.

With that background in mind, we first address Prater’s

challenge to a magistrate judge’s authority to deny IFP

to de novo review by the district court; instead, a district court

need only provide “reasoned consideration” to the legal issues

raised by the recommendation. EEOC, 866 F.3d at 99–100

(citation omitted). However, a failure to timely object does not

forfeit the right to appellate review once the district court has

entered a final decision on the recommendation. Henderson v.

Carlson, 812 F.2d 874, 878–79 (3d Cir. 1987).

15

motions.6 Though the Commonwealth purports to concede the

issue, the magistrate judge’s jurisdiction is a predicate of our

own, and subject-matter jurisdiction cannot be waived or

forfeited for failure of the parties to object to it. See Burton, 25

F.4th at 207.

Based on the statute, Federal Rules, and caselaw, we

conclude that magistrate judges maintain jurisdiction to decide

IFP motions. Starting with the plain text, § 636(b)(1)(A) carves

out only eight matters from a magistrate judge’s pretrial

jurisdiction. But the fact that IFP motions do not appear in this

list of exceptions is not conclusive because most courts agree

the list is illustrative, not exhaustive, of matters beyond the

scope of a magistrate judge’s pretrial jurisdiction. E.g., Baylor

v. Mitchell Rubenstein & Assocs., P.C., 857 F.3d 939, 946

(D.C. Cir. 2017) (citing First and Sixth Circuit cases); see also

Gomez, 490 U.S. at 874 (reasoning “jury selection,” which is

not a listed exception under § 636(b)(1)(A), “is more akin to

those precisely defined, ‘dispositive’ matters”).

Even so, other textual clues suggest IFP motions are

nondispositive pretrial matters. Take § 636(b)(1)(B), which

expressly permits magistrate judges to recommend the

disposition of (rather than determine) “applications for

posttrial relief” and “prisoner petitions challenging conditions

of confinement.” Congress clearly prohibited magistrate

judges from determining only the merits of such petitions. By

contrast, § 636(b)(1)(B) does not prevent magistrate judges

6

The magistrate judge’s denial of Prater’s IFP motion

included a mandate that Prater’s subsequent complaints

comply with federal joinder rules. We do not understand the

parties to be challenging the magistrate judge’s power to order

compliance with federal joinder rules.

16

from ruling on the IFP motions that often accompany such

petitions. Notably, the power to allow plaintiffs to proceed IFP

dates back to at least 1892—well before the passage of the

Federal Magistrates Act in 1968 and amendments thereto in the

1970s. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d

Cir. 2001); see also Gomez, 490 U.S. at 865–71 (tracing

statutory history of magistrate judge authority). So Congress

passed § 636(b)(1)(A) and (B) against the longstanding

backdrop of district courts deciding pretrial IFP motions in

tandem with substantive prisoner petitions. Yet, the statute

limits a magistrate judge only from deciding the latter.

The Federal Rules implementing § 636(b) bolster our

conclusion. As noted, the Rules use a different organizing

principle than the statute. Instead of listing specific exceptions

to magistrate judge jurisdiction, the Rules carve out all

“dispositive” matters. Fed. R. Civ. P. 72(b). And while the

Rules’ language is surely broader than the statute’s text, we

must construe the term “dispositive . . . in harmony with the

classifications limned in [§] 636(b)(1).” Phinney v. Wentworth

Douglas Hosp., 199 F.3d 1, 5 (1st Cir. 1999) (citing principle

of in pari materia). Thus, the “enumeration” of specific

exceptions in § 636(b)(1)(A) “informs the classification of

other motions as dispositive or nondispositive.” Id. at 6.

IFP motions are “not of the same genre” as the

exceptions to a magistrate judge’s pretrial jurisdiction

enumerated in the Act, which are generally outcome

determinative. See id. Most of the enumerated exceptions—

motions for judgment on the pleadings, summary judgment, or

dismissal, for example—can formally decide the case. See 28

U.S.C. § 636(b)(1)(A). Two of the enumerated exceptions do

not follow this general rule but, nevertheless, fall outside of

magistrate judges’ § 636(b)(1)(A) authority. First, motions for

injunctive relief are not outcome determinative for entire

17

claims, but they are “dispositive” in that they conclusively

resolve parties’ rights and obligations for the period of the

injunction. Second, motions to suppress evidence in criminal

cases raise unique concerns because they may well determine

the outcome of criminal matters. While the denial of an IFP

motion may functionally end a case when a plaintiff also lacks

the ability to pay, the denial is not outcome determinative in

the same way as a disposition would be related to the

illustrative list of dispositive motions in § 636(b)(1)(A). After

a denial of an IFP motion, a plaintiff can proceed with his case,

unimpeded as to the merits, after first paying the filing fee.

Though the parties cite other Circuits that have

concluded otherwise, we do not find those cases persuasive.

Taking each case in turn, Donaldson v. Ducote concerned the

right to proceed IFP on appeal. 373 F.3d 622, 624 (5th Cir.

2004). Obviously, a decision regarding that right does not

pertain to pretrial authority. Meanwhile, Tripati v. Rison held

a magistrate judge’s jurisdiction over IFP motions derived only

from a referral and parties’ consent under § 636(c) but did not

substantively discuss § 636(b) or distinguish IFP motions from

other matters a magistrate judge has the pretrial authority to

decide. 847 F.2d 548, 548–49 (9th Cir. 1988). That leaves

Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990), and the

decisions relying upon it without much comment: Lister v.

Department of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005),

and Hunter v. Roventini, 617 F. App’x 225, 226 (4th Cir.

2015). These cases primarily reason that magistrate judges may

not deny IFP motions because doing so “is the functional

equivalent of an involuntary dismissal”—one of the express

statutory carveouts in § 636(b)(1)(A). Woods, 894 F.2d at 187.

It is not clear that simply denying an IFP motion without

prejudice is the “functional equivalent” of an involuntary

dismissal under § 636(b)(1)(A). Rather, a court is merely

18

determining how a petitioner’s case proceeds—with or without

prepayment of a filing fee. See Abdul-Akbar, 239 F.3d at 312.

And we have endorsed a broad view of magistrate judges’

pretrial power to determine how cases proceed. See, e.g., Siers

v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983) (denial of

appointment of counsel); United Steelworkers of Am. v. N.J.

Zinc Co., 828 F.2d 1001, 1006–08 (3d Cir. 1987) (grant of

motion to strike jury demand); Turner v. Schering-Plough

Corp., 901 F.2d 335, 341 n.4 (3d Cir. 1990) (denial of motion

to reopen discovery period); see also Sell v. United States, 539

U.S. 166, 175 (2003) (involving involuntary medication order

by magistrate judge pursuant to § 636(b)(1)(A)). Just as with

other pretrial matters within § 636(b)(1)(A)’s scope, denying

an IFP motion simply sets parameters under which a plaintiff

may proceed. That contrasts with orders that end the case,

which magistrate judges may not decide. See, e.g., Burton, 25

F.4th at 203 (dismissal of complaint with prejudice at

screening stage); Beazer E., Inc. v. Mead Corp., 412 F.3d 429,

438 (3d Cir. 2005) (equitable allocation of responsibility for

pollution in a CERCLA case, which was “one of the ultimate

issues to be tried”).

The Commonwealth warns that finding magistrate

judge jurisdiction over IFP motions would force an inmate to

simultaneously file objections in district court and appeal to

our Court given that denials of IFP motions are immediately

appealable under Roberts v. United States District Court, 339

U.S. 844, 845 (1950). But the Commonwealth overlooks the

distinction between § 636(b) finality and § 1291 finality. The

fact that a litigant may appeal directly to our Court when a

district court denies his IFP motion does not mean the litigant

can appeal directly to our Court when a magistrate judge

denies his IFP motion. See Siers, 700 F.2d at 115 & n.8. While

it is true that a magistrate judge’s decision is “final” in the

19

sense that it is “dispositive as to the discrete matter referred to

him or her,” § 636(b)(1)(A) outlines a specific procedure for

review of that final decision that begins with the district court,

not our Court. See Cont’l Cas. Co. v. Dominick D’Andrea, Inc.,

150 F.3d 245, 250 (3d Cir.), as amended (Sept. 8, 1998).

We can be sure that a magistrate judge’s decision under

§ 636(b) is not directly appealable to our Court under § 1291

because “when Congress has intended that certain decisions of

a magistrate be directly appealable to a circuit court, it has

expressly said so.” Siers, 700 F.2d at 116. For example,

§ 636(c)—which, upon the parties’ consent, grants a

magistrate judge authority to decide any and all matters—

provides for appeal of a magistrate judge’s decision “in the

same manner as an appeal from any other judgment of a district

court.” In other words, it permits an appeal “in the same

manner as an appeal” pursuant to § 1291. Thus, § 636(c)

finality equals § 1291 finality. No similar language appears in

§ 636(b) related to a magistrate judge’s decision on

nondispositive pretrial matters. Quite the opposite. Congress

has made clear that “review of a magistrate’s decision on a

nondispositive pretrial matter”—such as an IFP motion—

“must, initially, be had in the district court.” Siers, 700 F.2d at

116. Unless an inmate follows § 636(b)’s specific review

procedure, which starts with the district court, a magistrate

judge’s denial of an IFP motion is not “considered a ‘final’

decision of the district court for purposes of 28 U.S.C. § 1291”

or Roberts. Id. at 115.

Putting it all together, because an IFP motion is a

nondispositive pretrial matter, a magistrate judge’s denial does

not become final and appealable to our Court within the

meaning of § 1291 until after being objected to by the

dissatisfied party and reviewed by the district court. See id. at

116. Once the district court rules on the motion, the denial

20

becomes final under § 1291. See, e.g., Sinwell v. Shapp, 536

F.2d 15, 16 (3d Cir. 1976); see also Deutsch v. United States,

67 F.3d 1080, 1083 (3d Cir. 1995) (regardless of whether

dismissal is with or without prejudice, “an in forma pauperis

plaintiff must be afforded appellate review of a determination

that he is required to pay all or a portion of the court costs and

filing fees to file a claim”). Not until that point does an inmate

have a final, appealable order eligible for our review. Should

an inmate fail to obtain review of the denial of an IFP motion

in the district court first, as contemplated by the procedures in

the statute, he forfeits the right to challenge the IFP ruling in

our Court. See United States v. Polishan, 336 F.3d 234, 239–

40 (3d Cir. 2003).

Treating IFP motions as nondispositive honors the

statutory grant of power to magistrate judges to resolve “any

pretrial matter,” protects an inmate’s right of review by a

district court judge, and mitigates premature appeals of non-

final decisions. Applying those principles here, the magistrate

judge’s power to deny Prater’s IFP motion derived from his

pretrial authority pursuant to § 636(b)(1)(A) and was not

contingent on the parties’ consent. And according to the

statute, the appropriate avenue for review of the magistrate

judge’s denial is first before the district court, not our Court.

Thus, we have no authority to review the magistrate judge’s

denial of Prater’s IFP motion until after Prater seeks review in

the district court.

Prater, Isaac, and Aaron also challenge the magistrate

judges’ jurisdiction to enter final judgments in their respective

cases. A magistrate judge dismissed Prater’s case for “failure

to prosecute (failure to pay the filing fee).” JA Prater 6. And

the magistrate judges in Isaac’s and Aaron’s cases entered

21

summary judgment orders in favor of all defendants. A

magistrate judge may “hear and determine any pretrial matter .

. . except a motion for,” among other things, “summary

judgment . . . and to involuntarily dismiss an action.” 28 U.S.C.

§ 636(b)(1)(A) (emphasis added). Because the statute carves

out of magistrate judge jurisdiction the final judgment orders

at issue here, the magistrate judges could not rely on their

pretrial authority to enter the orders. But “[u]pon the consent

of the parties,” a magistrate judge “may conduct any or all

proceedings in a jury or nonjury civil matter and order the entry

of judgment in the case.” Id. § 636(c)(1). Thus, the magistrate

judges’ jurisdiction to enter final orders in each of these

appeals turns on whether they acted “upon the consent of the

parties.”

Under § 636(c)(1), consent is required from named

plaintiffs and from defendants who are “directly affected by an

order or a judgment issued by that magistrate judge,” including

yet-to-be-served parties but excluding parties the plaintiff

failed to timely serve. Burton, 25 F.4th at 209 & n.43. Consent

can be express or implied. See Roell v. Withrow, 538 U.S. 580,

582 (2003).

The parties agree, as do we, that not all named

defendants in Prater’s case provided express or implied

consent. Specifically, there is no evidence that the

Commonwealth ever consented to magistrate judge

jurisdiction. In fact, the Commonwealth concedes it was not

even aware of Prater’s suit prior to dismissal. Absent consent,

“the magistrate judge, as an Article I judge, simply d[id] not

have jurisdiction to decide the matter” and dismiss Prater’s

case for failure to prosecute. See Burton, 25 F.4th at 206. His

authority was restricted by the limits of § 636(b) and permitted

him only to submit a recommended disposition to the district

court.

22

The same is not true in Isaac’s and Aaron’s cases. The

parties agree that plaintiffs Isaac and Aaron expressly

consented, as did the initially named and served defendants in

each suit. However, they dispute whether later-added

defendants, who did not file consent forms, consented.7

Though later-added defendants did not expressly

consent, we can infer consent based on their “conduct during

litigation.” Roell, 538 U.S. at 582. In Roell, the plaintiff alleged

that prison officials disregarded his medical needs in violation

of the Eighth Amendment. Id. Once the plaintiff consented to

a magistrate judge’s jurisdiction, the district court referred the

case, with the caveat that the referral “would be vacated if any

of the defendants did not consent.” Id. at 583. The clerk

subsequently sent the referral order to the defendants and

requested that they state through their answer or a separate

pleading whether they consented. Id. Only one of the three

defendants consented; the others, represented by different

counsel, did not. Id. Yet the parties “proceeded in front of the

Magistrate Judge, all the way to a jury verdict and judgment.”

Id. The Supreme Court held that implied consent suffices for

final judgment jurisdiction under § 636(c)(1) and will be found

where “the litigant or counsel was made aware of the need for

consent and the right to refuse it, and still voluntarily appeared

to try the case before the Magistrate Judge.” Id. at 590. By their

actions, the two defendants “suppl[ied] the consent necessary

for the Magistrate Judge’s ‘civil jurisdiction.’” Id. at 591

(quoting 28 U.S.C. § 636(c)(2)).

7

CO Johnston need not have consented either because

he was not named, Dewey, 681 F.3d at 181, or because Aaron

failed to timely serve him, Burton, 25 F.4th at 209 n.43.

23

All defendants in Isaac’s and Aaron’s cases cleared

Roell’s implied consent bar. Counsel common to all defendants

in each case filed a consent form on behalf of some or all of the

initially named defendants. In doing so, counsel was “made

aware of the need for consent and the right to refuse it.” Id. at

590. And by signing the form, counsel “voluntarily consent[ed]

to have a United States Magistrate Judge conduct any and all

further proceedings in the case” pursuant to “the provisions of

[§] 636(c)(1),” and forewent the “option” of having the case

“assigned to a United States District Judge.” JA Isaac 56; JA

Aaron 151. And because in both cases, later-named or later-

served defendants were represented by the same counsel—

OAG—we can infer their voluntary consent to magistrate

judge jurisdiction.

Amicus argues consent was not effective because later-

added defendants—as opposed to their counsel—did not

consent. The Commonwealth responds that the decision to

proceed before a magistrate judge belongs exclusively to

counsel and cites Gonzalez v. United States, 553 U.S. 242

(2008), for support. We agree with Amicus that the

Commonwealth overreads Gonzalez, which merely permitted

counsel to choose whether to proceed before a magistrate judge

during voir dire under a different subsection of the Act, not

§ 636(c)(1).8 See Gonzalez, 553 U.S. at 249–53. Consenting to

a full trial before a magistrate judge is categorically different.

8

The Supreme Court held that counsel’s consent—as

opposed to a defendant’s—was sufficient to empower a

magistrate judge to supervise voir dire pursuant to § 636(b)(3).

See Gonzalez, 553 U.S. at 253. That subsection states, “A

magistrate judge may be assigned such additional duties as are

not inconsistent with the Constitution and laws of the United

States.” 28 U.S.C. § 636(b)(3).

24

In any event, we need not wade into the constitutional thicket

of what rights may or may not be waived by counsel alone.

Compare id. at 248–52 (suggesting some “fundamental” rights

may be waived only by the client), with id. at 255–58 (Scalia,

J., concurring) (reasoning “all waivable rights (except, of

course, the right to counsel) can be waived by counsel”). There

is no indication that any defendant would not have consented.

This case fits comfortably within Roell’s rule, which

permits us to infer a defendant’s consent from counsel’s

conduct, so long as consent is knowing and voluntary. See 538

U.S. at 589–90; see also Wellness Int’l Network, Ltd. v. Sharif,

575 U.S. 665, 685 (2015) (“a litigant’s consent—whether

express or implied—must still be knowing and voluntary”).

There is no indication that defense counsel in either Isaac’s or

Aaron’s case acted contrary to the wishes of their clients. Nor

does Amicus show that, despite voluntarily appearing through

counsel before the magistrate judges, one or all defendants

involuntarily or unknowingly waived their right to litigate

before an Article III judge. Absent such a showing, a

straightforward application of Roell preserves a litigant’s

“personal right” to insist on a trial before an Article III judge.

See Commodity Futures Trading Comm’n v. Schor, 478 U.S.

833, 848 (1986).

In cases like this, Roell’s rule makes practical sense. In

his amended complaint, Isaac sued the prison and fourteen

individual officials. Aaron sued the prison and over thirty

individual officials, some named, some unnamed, and some

improperly named. As the pro se cases proceeded through the

pleading and discovery phases, numerous officials were added,

dropped, re-added, re-dropped, and renamed. Amicus’s

proposed rule—that to comply with Roell the

Commonwealth’s attorney needed to round up the new, added,

renamed, or re-added defendants and obtain their consent with

25

each new iteration of the suit—is hardly a workable solution in

cases where numerous member-defendants of an institutional

group are being sued.

We are also unpersuaded by Amicus’s attempts to

narrow Roell to avoid its import. First, Amicus draws

unwarranted distinctions between consent based on

defendants’ knowledge and consent based on counsel’s

knowledge. Roell explicitly permits either. 538 U.S. at 590

(“litigant or counsel was made aware” (emphasis added)).

Second, Amicus claims Roell’s rule applies only when

“the litigants [have] repeated verbal notice, throughout lengthy

proceedings, that the magistrate judge [is] operating on the

understanding that they consented.” Amicus Br. 24. But Roell

is not so fact bound. Though the Court supposed implied

consent would be “the exception, not the rule,” it nevertheless

reasoned that so long as a party is “notified of the availability

of a district judge, . . . a litigant’s general appearance before

the magistrate judge will usually indicate the necessary

consent.” Roell, 538 U.S. at 591 n.7. It may be true that a

general appearance, on its own, is not particularly illuminating

and equally suggests parties intend to proceed under

§ 636(b)(1) or (c)(1). However, once a litigant or counsel

makes the informed choice to forgo a district judge, we may

glean new meaning from a subsequent general appearance. The

fact that a magistrate judge exercises recommendation (rather

than final judgment) authority prior to the filing of a consent

form is irrelevant.

Third, Amicus is wrong that Burton narrowed Roell’s

reach. In Burton, we declined to find implied consent for three

defendants who shared common counsel. 25 F.4th at 204, 210.

From that, Amicus concludes that filing a consent form for one

defendant cannot “automatically transfer[]” consent to

“subsequent defendants represented by the same counsel.”

26

Amicus Br. 27. But Amicus ducks a key distinction. Unlike

here, none of the Burton defendants filed a consent form prior

to final disposition. 25 F.4th at 210–11 & n.59. Absent a form,

or any other evidence, we could not infer that defense counsel

knew of the need for consent and the right to refuse it. See id.

at 210. Even more, the practical implications of Amicus’s

reading of Burton would create strange results: the

happenstance of staffing decisions at a law firm or government

office related to particularly complex cases could nullify

consent. Contrary to Amicus’s argument, by finding implied

consent here, we are not transforming § 636(c)(1) into an opt-

out regime. We are simply applying Roell, which set the bar

for opting in.

Finally, we reject Amicus’s claim that procedural

defects nullified the later-added defendants’ implied consent.

Amicus emphasizes that the later-added defendants were not

advised, in keeping with § 636(c)(2)’s requirements, that

consent may be refused without consequences. But the statute

only imposes that requirement when, after the parties have

been notified by the clerk of court about the availability of a

magistrate judge, the court advises them again of the

magistrate judge’s availability. See 28 U.S.C. § 636(c)(2)

(“[t]hereafter”); Fed. R. Civ. P. 73(b) (“Reminding the

Parties”). And in any event, Roell held there was implied

consent where “§ 636(c)(2) was honored in the breach.” 538

U.S. at 586. The touchstone of implied consent is not

“adherence to the letter of § 636(c)(2),” but rather the

voluntariness of the parties’ consent based on their knowledge

and conduct during litigation. See id. at 587.

Therefore, we conclude all required parties in Isaac’s

and Aaron’s cases either expressly or impliedly consented to

magistrate judge jurisdiction, permitting the magistrate judges

to enter summary judgment orders. When counsel filed consent

27

forms early in each case related to initially named defendants,

counsel became aware of the need for consent and the right to

refuse it, and still voluntarily continued to appear on behalf of

all defendants before the magistrate judges.

Because the magistrate judge lacked jurisdiction to

involuntarily dismiss Prater’s case, we must determine what

that means for our jurisdiction on appeal.

It is settled law that “[i]f the requirements of [§]

636(c)(1) are not satisfied, the ‘magistrate judge [is deprived]

of jurisdiction over the case’” and may not enter final orders;

concomitantly, “we are statutorily deprived of appellate

jurisdiction over the magistrate judge’s orders.” Burton, 25

F.4th at 205 (citation omitted). Despite Burton’s clear

language, Amicus contends that we have statutory appellate

jurisdiction to vacate and remand jurisdictionally defective

magistrate judge orders pursuant to § 636(c)(3), which permits

“any case referred under paragraph [c](1)” to be “appeal[ed]

directly to the appropriate United States court of appeals.”

Because § 636(c)(3) does not require a valid referral, the

argument goes, an appellate court maintains jurisdiction to

vacate and remand even improperly referred cases that lack

consent.

We disagree. Consent, not referral, allows the

magistrate judge “to direct the entry of a judgment of the

district court.” 28 U.S.C. § 636(c)(3). And this “entry of

judgment” is what permits us to review a magistrate judge’s

decision “in the same manner as an appeal from any other

judgment of a district court.” Id. As Gonzalez put it,

“jurisdiction turns on consent,” 553 U.S. at 253, whereas the

referral merely sends or directs the case to a magistrate judge

for decision, see Refer, Webster’s Third New International

28

Dictionary of the English Language Unabridged (1971) (“to

send or direct for . . . decision”); cf. Roell, 538 U.S. at 586–87

(procedurally defective referral does not nullify jurisdiction

where there is voluntary consent). Our hands are tied, then,

because our “final order jurisdiction” over a magistrate judge’s

decision arises under § 636(c)(3) only “to the extent it is final

under 28 U.S.C. § 1291.” See Dewey, 681 F.3d at 180 (citation

omitted); compare with Ellison v. Am. Bd. of Orthopaedic

Surgery, 11 F.4th 200, 204, 210 (3d Cir. 2021) (vacating and

remanding after exercising § 1291 jurisdiction). Without

§ 636(c) consent jurisdiction, we are back where we started

many paragraphs ago: either the magistrate judge’s order must

be reviewed by the district court or incorporated into a

subsequent final order (for § 636(b)(1)(A) orders) or adopted

by the district court (for § 636(b)(1)(B) orders) before we have

the power to act on it in any way.

We need not choose between adopting Amicus’s novel

theory of quasi-subject-matter jurisdiction to review

jurisdictional issues under § 636(c) on the one hand, or facing

a “jurisdictional blackhole” on the other. Amicus Br. 37. Upon

entry of a jurisdictionally defective magistrate judge order,

parties simply have nonbinding, non-final judgments in hand.

As the Commonwealth points out, a litigant’s personal rights

are protected even when a magistrate judge enters an improper

dismissal because the litigant retains the right to an Article III

forum: review by the district court. See United States v.

Raddatz, 447 U.S. 667, 683 (1980). While other remedies, such

as a writ of mandamus or vacatur of the referral under

§ 636(c)(4) may be discretionary, district court review of a

magistrate judge’s recommendation is not. See id.; see also

EEOC, 866 F.3d at 100. Nor does the passage of time threaten

to foreclose Prater’s right to district court review. The timing

of Prater’s objections may affect the rigor of review he receives

29

from the district court, but it does not shut the district court’s

doors. See EEOC, 866 F.3d at 99–100.

Statutory appellate jurisdiction aside, both parties argue

that we may vacate and remand jurisdictionally defective

magistrate judge orders pursuant to our supervisory authority.

We will not shoehorn into our supervisory authority a power to

vacate and remand absent jurisdiction. We have consistently

described our supervisory authority as empowering the Court

to “mandate procedures deemed desirable from the viewpoint

of sound judicial practice.” United States v. Wecht, 484 F.3d

194, 204 (3rd Cir. 2007) (citation and quotation marks

omitted); see also Arn, 474 U.S. at 142. This process-related

oversight power is an insufficient stand-in for statutory

appellate jurisdiction. Further, invoking our supervisory

authority to vacate and remand jurisdictionally defective

magistrate judge orders would be invalid because we would be

contravening the clear text of a statute, see United States v.

Payner, 447 U.S. 727, 737 (1980), which grants us jurisdiction

only over a judgment entered upon the consent of the parties.

Admittedly, there is not perfect consistency in our

disposition of cases when we lack jurisdiction to review an

order entered by a magistrate judge. See, e.g., Burton, 25 F.4th

at 212 (vacating and remanding); Siers, 700 F.2d at 116

(dismissing). Despite our inconsistent history and the parties’

consensus that vacatur and remand is proper, we will dismiss

Prater’s appeal for lack of jurisdiction. Dismissal is more

appropriate because when jurisdiction “ceases to exist, the only

function remaining to the court is that of announcing the fact

and dismissing the cause.” Ex parte McCardle, 74 U.S. 506,

514 (1868); see also, e.g., Phillips v. Beierwaltes, 466 F.3d

1217, 1222 (10th Cir. 2006) (dismissing for lack of jurisdiction

an appeal from a magistrate judge’s discovery order that had

not been reviewed by the district court); Geaney v. Carlson,

30

776 F.2d 140, 143 (7th Cir. 1985) (dismissing for lack of

jurisdiction because “magistrate’s dismissal is a nonappealable

order”); McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 472

(6th Cir. 2006) (same). But see Allen v. Meyer, 755 F.3d 866,

869 (9th Cir. 2014) (vacating and remanding jurisdictionally

defective magistrate judge order dismissing inmate’s § 1983

case).

The somewhat antiquated cases the parties cite in

support of a roving “supervisory appellate power,” Walling v.

James V. Reuter, Inc., 321 U.S. 671, 676 (1944), to justify

vacatur do not change our conclusion. Walling and its progeny

have been narrowly interpreted to permit a court to “make such

disposition of the whole case as justice may require” when

“mootness prevents us from reviewing [a judgment] that has

prospective effects.” See Camreta v. Greene, 563 U.S. 692,

714 n.11 (2011) (citation omitted). No mootness issue exists

here. And a court’s power to issue a “corrective order” even

when “the merits cannot be reviewed,” see Gully v. Interstate

Nat. Gas Co., 292 U.S. 16, 18 (1934), has similarly been

narrowly construed, see, e.g., Okla. Gas & Elec. Co. v. Okla.

Packing Co., 292 U.S. 386, 392 (1934) (vacating and

remanding because the correct appeals procedure was not

“more definitely settled” and dismissal would cause appellants

to “los[e] their opportunity” for merits review); United States

v. Corrick, 298 U.S. 435, 436, 440 (1936) (vacating and

remanding “merely for the purpose of correcting” an

erroneously entered injunctive order against the Secretary of

Agriculture and others that prevented them from prosecuting

corporations who violated rate schedules); Bailey v. Patterson,

369 U.S. 31, 34 (1962) (vacating and remanding order from

improperly convened three-judge district court). In fact, the

cases cited by the parties adhere to the “general rule” of

dismissing an appeal in the absence of jurisdiction so long as

31

our dismissal does not give the deficient order “full effect . . .

in violation of [a] legal or constitutional right.” Stickney v. Wilt,

90 U.S. 150, 162 (1874); see United States v. Huckabee, 83

U.S. 414, 435 (1872) (calling dismissal “the correct practice”

where “a court has no jurisdiction”). Here, dismissal simply

means Prater must seek review of the magistrate judge’s non-

final, non-binding order in the district court, where his claim

will be finally adjudicated by an Article III official.

While we will dismiss Prater’s appeal for lack of

jurisdiction, we have the power to review Isaac’s and Aaron’s

appeals under 28 U.S.C. § 636(c)(3). We will affirm the

magistrate judges’ summary judgment orders in both cases for

failure to exhaust.

Under the PLRA, prisoners who seek to challenge their

conditions of confinement must exhaust all available

administrative remedies. 42 U.S.C. § 1997e(a). We determine

“whether a prisoner has ‘properly’ exhausted a claim” by

“evaluating the prisoner’s compliance with the prison’s

administrative regulations governing inmate grievances.”

Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004). At issue here

are two procedures. The first, ADM 804, sets out the default

procedure for the inmate grievance process. The second, ADM

001, relates to reporting and investigating inmate abuse by

staff. Amicus concedes Isaac and Aaron did not exhaust their

remedies under ADM 804. Nevertheless, it argues Isaac and

Aaron exhausted their claims because they reported to prison

staff the details of their abuse allegations in accordance with

ADM 001. For Amicus to be right, ADM 804 and ADM 001

must provide alternative paths for exhaustion. They do not.

ADM 804 creates the three-step Inmate Grievance

System. First, an inmate must submit a grievance to the Facility

32

Grievance Coordinator. The grievance must include the

relevant facts, individuals involved, claims alleged, and relief

sought. A different official—the Grievance Officer—reviews

the grievance and submits an initial response. The inmate may

appeal the initial response to the Facility Manager, who

reviews it and issues a decision. The inmate may file a final

appeal to the Secretary of Corrections’ Office of Inmate

Grievances and Appeals.

ADM 804 clearly states when it does not apply—for

example, when an inmate alleges sexual abuse, or his claim

concerns an “incident[] of an urgent or emergency nature” or

misconduct charges. ADM 804 § 1(A)(2), (7). When one of

those exceptions applies, a plaintiff is excused from satisfying

ADM 804’s exhaustion requirement. See Downey v. Pa. Dep’t

of Corr., 968 F.3d 299, 307 (3d Cir. 2020). But Isaac and Aaron

do not argue that they satisfy an existing exception; rather, they

ask that we read into the text of DOC policy a new exception—

exhaustion under ADM 001. Just as we refrain from rewriting

statutes, we will not amend DOC policy from the bench and

add a new avenue for administrative exhaustion. See id. at 306

(applying principles of statutory interpretation to DOC policy).

While ADM 804 creates a formal procedure to resolve

problems or other issues of concern arising during

confinement, ADM 001 aims to ensure that staff do not subject

an inmate to corporal or unusual punishment, or personal abuse

or injury. ADM 001 speaks to all who may be privy to inmate

abuse—inmates, employees, and all persons and entities who

maintain contact with inmates. The policy permits an inmate

who is the victim of abuse to report it verbally or in writing to

a staff member, complain directly to DOC’s Central Office, or

file a formal grievance pursuant to ADM 804. The fact that

ADM 001 does not require a formal grievance to trigger an

investigation shows the policy mitigates and provides relief for

33

alleged abuse even when it does not violate legal rights. By

contrast, ADM 804 requires an inmate to specify in his

grievance any alleged violation of department regulations or

other law as well as specify the compensation or legal relief the

inmate desires. ADM 001 contains no similar requirements, all

of which would be necessary to afford an inmate meaningful

relief in court.

The interrelatedness of the policies does not suggest the

two are interchangeable. ADM 804’s cross reference to ADM

001 reveals that the two policies work in tandem, not in place

of one another. When an inmate brings an abuse grievance, the

normal ADM 804 review does not proceed until an

investigation occurs in accordance with ADM 001. The

Grievance Officer does not provide an initial response to an

abuse-related grievance until he receives and reviews the

documentation from the ADM 001 investigation. But that does

not change the fact that ADM 804 is the sole procedure for

obtaining an adjudicatory decision subject to appeal. A

different conclusion would nullify the grievance review

process outlined by ADM 804. While ADM 001 produces

investigative reports that may help the ADM 804 process

along, among other purposes, it does not replace ADM 804.

We conclude that ADM 804 is the exclusive means of

exhaustion. And, having failed to follow the full administrative

review process under ADM 804, Isaac and Aaron necessarily

failed to properly exhaust their claims under the PLRA.

Finally, we address Amicus’s argument that we should

exercise our supervisory authority to review the Western

District of Pennsylvania consent procedures and rectify their

supposed deficiencies.

34

While “courts of appeals are authorized to ‘mandate

procedures deemed desirable from the viewpoint of sound

judicial practice,’” Wecht, 484 F.3d at 204 (citation omitted),

“our supervisory power should not be invoked lightly,” Sowell

v. Butcher & Singer, Inc., 926 F.2d 289, 295 (3d Cir. 1991).

The consent procedures for the Western District ensure

voluntary consent by litigants, adhere to § 636(c) procedures,

and leave room for district courts to experiment with

magistrate judge involvement in cases. Local Rule 10 codifies

the procedure for obtaining party consent soon after a pro se

prisoner initiates a civil suit. See W.D. Pa. Local Civ. R. 10(E).

And Local Rule 72 makes clear that absent consent, a

magistrate judge has the power only to decide nondispositive

motions and recommend a decision on dispositive motions. See

W.D. Pa. Local Civ. R. 72(C)–(E).

Amicus attacks the Local Rules from several angles, but

its arguments are not persuasive. First, even though all prisoner

civil cases and non-death-penalty habeas cases are

automatically assigned to a magistrate judge, the Local Rules

specify that the magistrate judge’s decision-making authority

is constrained by the jurisdictional limits of § 636. See W.D.

Pa. Local Civ. R. 72(G). Thus, in keeping with § 636(b)(1) and

the Federal Rules, the Local Rules permissibly designate

magistrate judges to exercise limited decision-making

authority absent consent. Second, the Local Rules do not run

afoul of § 636(c)’s requirement that a litigant be advised of the

right to refuse magistrate judge jurisdiction and the lack of

adverse consequences upon refusal. Section 636(c) requires

this advisement only when courts are reminding litigants about

the availability of magistrate judge jurisdiction, not first

informing them. 28 U.S.C. § 636(c)(2); see also Fed. R. Civ.

P. 73(b). Plus, the advisement is meant to mitigate coercive

consent after a litigant has already declined magistrate judge

35

jurisdiction. Amicus does not identify coercion after first

refusal here or generally in the Western District. Finally, unlike

the ambiguous and jurisdiction-presuming consent forms in

Anderson v. Woodcreek Venture Ltd., 351 F.3d 911, 916 (9th

Cir. 2003), cited by Amicus for support, the Western District’s

forms (i) require consent prior to final judgment, (ii) identify

statutory authority, and (iii) provide an explicit option to select

a district court judge. W.D. Pa. Local Civ. R. 10, 72.

In short, the Western District’s Local Rules provide

adequate safeguards. Jurisdictions may vary how they

implement § 636 and Federal Rules 72 and 73, and we are

satisfied that the Western District’s procedures ensure knowing

and voluntary consent to magistrate judge jurisdiction.

For these reasons, we will dismiss Prater’s appeal

challenging the magistrate judge’s involuntary dismissal of his

case because we lack jurisdiction. And we will affirm the

magistrate judges’ summary judgment orders in Isaac’s and

Aaron’s cases for failure to exhaust administrative remedies.

36