Court Opinion: 10th Circuit Court of Appeals Opinion for Aug. 9

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Herrington v. Unknown Police Officer #1, et al.

Jacob Herrington, a Colorado state prisoner, appealed the district court’s dismissal of his 42 U.S. Code 1983 complaint. Herrington also sought leave to proceed in forma pauperis. Because Herrington failed, the opinion noted, to cure pleading deficiencies and comply with the district court’s local rules, the 10th Circuit affirmed the district court’s dismissal and denied Herrington’s request to proceed in forma pauperis.

Herrington is a pretrial detainee at the El Paso County Criminal Justice Center in Colorado Springs, Colorado. In May 2022, Herrington initiated these proceedings in the U.S. District Court for the District of Colorado, alleging his constitutional rights were violated in August 2021 after he contacted 911 and explained he was being robbed and assaulted. Herrington claimed the dispatcher refused to send emergency services and the police arrived and arrested him. He also alleged the state district court allowed law enforcement to lie under oath and refused to provide him with a speedy trial.

On June 1, 2022, the assigned magistrate judge ordered Herrington to cure specified deficiencies in his filings. The order warned if Herrington failed to cure the deficiencies within 30 days, the magistrate judge would dismiss the action without further notice, the opinion noted. Herrington filed multiple affidavits, letters and motions — all of which were nonresponsive to the order directing him to cure deficiencies. And, when the district court mailed Herrington a copy of a June 2022 Minute Order, it was returned as undeliverable, which led the district court to conclude Herrington failed to file a notice of change of address within five days of any change of address as required by the local rules, the opinion added.

As a result, the district court dismissed the complaint and action without prejudice under Rule 41(b) for failure to cure the deficiencies as directed and for failure to comply with the district court’s local rules. And relying on 28 U.S.C. 1915(a)(3), the district court certified the 10th Circuit shouldn’t take this appeal in forma pauperis because it lacked good faith.

Herrington appealed the district court’s dismissal of his complaint.

On Aug. 25, 2022, the 10th Circuit court issued an order informing Herrington his appeal appeared to be untimely. Herrington filed his notice of appeal of the district court’s July 8, 2022 order on Aug. 22, 2022, which was beyond the mandatory and jurisdictional 30-day period. The 10th Circuit court also asked Herrington to file a brief explaining why the 10th Circuit has jurisdiction to consider an appeal that appeared to be untimely filed.

As an inmate confined in an institution, Herrington’s filings were subject to the “prison mailbox rule” set forth in Rule 4(c)(1) of the Federal Rules of Appellate Procedure. 

Herrington briefed the jurisdictional issue and declared, under penalty of perjury, he gave his notice of appeal “to case manager/deputy” on Aug. 7 in compliance with 28 U.S.C. 1746 and Federal Rule of Appellate Procedure 4(c)(1). He further explained neither the state hospital nor the jail in which he was located had a system designed for legal mail. Instead, according to Herrington, he must “simply turn[] in outgoing mail” and, because indigent persons can’t access stamps, “unknown parties sort and stamp outgoing mail.” And, in a supplemental response, Herrington clarified he was allotted four stamps per month. Consistent with one of Herrington’s prior appeals, the 10th Circuit “liberally [construed]” these facts “as indicating that first-class postage was prepaid on his notice of appeal,” the opinion noted, citing the 10th Circuit decision Herrington v. Geary. Based on this information, the 10th Circuit determined Herrington satisfied the prison mailbox rule and his appeal was timely.

Turning to the merits, under Federal Rule of Civil Procedure 41(b), a district court may dismiss an action if the plaintiff fails “to comply with [the Federal Rules of Civil Procedure] or any order of [the] court.” The 10th Circuit reviewed dismissals under Rule 41(b) for abuse of discretion, the opinion noted, citing the decisions Olsen v. Mapes and Mobley v. McCormick.

“[D]ismissal is an appropriate disposition against a party who disregards court orders and fails to proceed as required by court rules,” the opinion noted, citing the decisions United States ex rel. Jimenez v. Health Net, Inc. and Nat’l Hockey League v. Metro. Hockey Club, Inc.

Herrington’s appeal focused largely on his stated inability to obtain court rules and other legal materials. According to the opinion, at no point did Herrington explain specifically how or why he was unable to comply with the magistrate judge’s order to cure filing deficiencies. No basis exists on which to find the district court abused its discretion. The 10th Circuit concluded the district court didn’t abuse its discretion and properly dismissed the complaint for failure to cure deficiencies and comply with the local rules, the opinion noted.

Herrington also moved to proceed in forma pauperis under 28 U.S.C. 1915(a)(1). The district court certified “pursuant to 28 U.S.C. § 1915(a)(3) that any appeal . . . would not be taken in good faith,” the opinion noted, citing the decision Herrington v. Colorado Springs Police Department et al. The 10th Circuit agreed with the district court’s certification under the statute. 

The 10th Circuit affirmed the district court’s dismissal of Herrington’s complaint and action without prejudice and denied his motion to proceed in forma pauperis.

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