APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Adams, Weis and Van Dusen, Circuit Judges.
VAN DUSEN, Senior Circuit Judge.
This is a direct appeal from an order of the United States magistrate, who denied plaintiff's motion for appointment of counsel in a civil rights suit challenging the defendants' alleged failure to provide adequate medical treatment. Defendants seek to dismiss the appeal on the ground that the magistrate's order, which the referring district court has neither reviewed nor adopted, is not a "final" order of the district court within the meaning of 28 U.S.C. § 1291 and that, therefore, this court lacks jurisdiction. We agree.
On August 7, 1981, Chuck Siers, while incarcerated at the State Correctional Institution at Pittsburgh (SCIP),*fn1 brought a civil rights action pursuant to 42 U.S.C. § 1983 claiming that defendants had deprived him of his rights under the Eighth and Fourteenth Amendments by failing to provide adequate treatment for a testicular disorder. Siers named as defendants the Hospital Administrator at SCIP, the staff urologist, a caseworker, and the Deputy Commissioner.*fn2
The magistrate granted Siers' motion to proceed in forma pauperis. Subsequently, Siers filed a motion for appointment of counsel under 28 U.S.C. § 1915(d),*fn3 alleging his indigent status and his general ignorance of legal procedures. On December 3, 1981, the magistrate denied Siers' motion on the ground that he had not demonstrated that appointment of counsel "would materially aid the overall interests of the parties as well as the Court in the proper administration of justice." Siers v. Morrash, No. 81-1315 (Dec. 3, 1981). Fifteen days later, Siers filed an untimely motion for reconsideration which the magistrate also denied.*fn4 Siers did not seek review in the district court, nor did the district court rehear the matter sua sponte. On January 4, 1982, Siers filed this appeal.
28 U.S.C. § 1291 provides that "the courts of appeals shall have jurisdiction from all final decisions of the district courts of the United States."*fn5 To be a "final" order of the district court within the meaning of section 1291, the magistrate's decision must have been reviewed by the district court, which retains ultimate decision-making power. Mathews v. Weber, 423 U.S. 261, 46 L. Ed. 2d 483, 96 S. Ct. 549 (1976). Every circuit which has considered this question holds that a magistrate's order is not a "final" order of the district court within the meaning of section 1291. See Horton v. State Street Bank & Trust Co., 590 F.2d 403 (1st Cir. 1979); Matter of Mackin, 668 F.2d 122 (2d Cir. 1981); Glover v. Alabama Board of Corrections, 651 F.2d 1014, reh'g denied, 660 F.2d 120 (5th Cir. 1981); Taylor v. Oxford, 575 F.2d 152 (7th Cir. 1978); Metric & Multistandard Corporation v. Metric's Inc., 600 F.2d 1237 (8th Cir. 1979); United States v. First National Bank of Rush Springs, 576 F.2d 852 (10th Cir. 1978) (per curiam).
Siers argues, however, that Congress has indicated that a magistrate's determination of a nondispositive pretrial matter is a "final" appealable order for the purposes of 28 U.S.C. § 1291. A studied reading of the Federal Magistrates Act, 28 U.S.C. §§ 631-39, and its legislative history does not support this contention.
The Federal Magistrates Act provides in part that, except for certain enumerated dispositive motions,*fn6 "a judge may designate a magistrate to hear and determine any pretrial matter pending before the court." 28 U.S.C. § 636(b)(1)(A). The legislative history pertaining to this section reveals Congress' express intention that a magistrate's determination of such pretrial matters "shall be 'final ' subject only to the ultimate right of review by a judge of the court."*fn7 H.R. Rep. No. 94-1609, reprinted in 1976 U.S. Code Cong. & Ad. News 6162, 6170.
Congress has thus made clear that a magistrate's decision of a pretrial matter, such as the order from which Siers appeals in this case, is to be considered "final" absent review by a district judge. It does not follow, however, that the order should be considered a "final" decision of the district court for purposes of 28 U.S.C. § 1291.*fn8
Indeed, the Federal Magistrates Act provides that a "judge of the court . . . . may reconsider any pretrial matter under . . . . subparagraph A," and that, if a party files objections within 10 days, a "judge of the court . . . . may accept, reject, or modify" the findings of the magistrate. 28 U.S.C. § 636(b)(1). Furthermore, Congress indicated in the legislative report on the act that the decision of the magistrate on such matters is "intended to be 'final ' unless a judge of the court exercises ...