Leila McCoy v. Colorado Department of Human Services

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
LEILA MCCOY,
Plaintiff - Appellant,
v.
COLORADO DEPARTMENT OF
HUMAN SERVICES; ANDREA
OLIVER, Reg. Director USDHHS, in
individual & professional capacities; KIDS
CROSSING; SAVIO HOUSE OF
COLORADO SPRINGS,
Defendants - Appellees.
No. 20-1411
(D.C. No. 1:20-CV-02378-LTB)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Leila McCoy commenced this civil rights action by filing a pro se complaint
alleging that the defendants had harmed her by violating various federal statutes.
After screening her complaint, a magistrate judge ordered her to file an amended
complaint and a properly signed application to proceed without prepayment of fees or
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
FILED
United States Court of Appeals
Tenth Circuit
June 4, 2021
Christopher M. Wolpert
Clerk of Court
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costs, on proper court-approved forms. The magistrate judge’s order warned her that
if she failed to comply within thirty days the action would be dismissed without
further notice.
Two months later, the district court found that McCoy had failed to cure the
deficiencies within the time allowed. It therefore dismissed the action without
prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to comply with the prior order
in full within the time allowed and for failure to prosecute. McCoy appeals the
dismissal. We have jurisdiction, see 28 U.S.C. § 1291, and we affirm.
BACKGROUND
McCoy filed her initial complaint in this action, along with an application to
proceed without prepayment of fees or costs (IFP application) using a court-approved
“short form,” on August 10, 2020. On August 11, a magistrate judge ordered her to
re-submit her complaint using the court’s current court-approved complaint form, and
to file her IFP application using a court-approved “long form.” She was ordered to
cure these deficiencies within 30 days.
On August 20, McCoy filed an amended complaint. During the following
month she filed additional pleadings including a motion to further amend her
amended complaint, two statements to accompany her proposed second amended
complaint, and an unsigned long form IFP application.
On September 16, 2020, the magistrate judge entered a second order requiring
McCoy to cure deficiencies in her filings. He noted she had complied with his earlier
order by submitting an amended complaint on a current court-approved complaint
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form, and that she had also submitted an IFP application using the proper long form.
But she had not signed the IFP application. In addition, the pleadings she had filed
seeking to further amend her complaint, if granted, would have had the effect of
superseding the complaint filed on the court-approved form with a deficient
complaint. The magistrate judge therefore ordered her, within 30 days, to submit a
single complaint on a proper court-approved form that asserted all her claims and
named all defendants, along with a signed IFP long form. The magistrate judge also
notified McCoy that no other pleadings besides those he had ordered would be
accepted. Finally, he warned her that if she failed to timely comply with the order
the court would dismiss the complaint and the action without further notice.
During the following two months, McCoy filed many additional pleadings
including motions to add defendants; motions to add additional claims for relief;
motions to amend, correct, or modify her complaint; and a motion to add a plaintiff.
Finally, on November 2, 2020, she filed two versions of a “Motion to Amend and
Replace All Previous Filings With Revised Complaint Filed on 11/02/2020 and Seal
the Case from [Public] Access,” together with two copies of a proposed amended
complaint (11/02/2020 Complaint), one signed and one unsigned. See R. at 139-52;
153-66. Although the caption of each of the new accompanying complaints
identified the plaintiff as “Leila McCoy,” the section of the complaint requiring
“Plaintiff Information” identified the plaintiff using a different name. R. at 153-54;
158-59.
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On November 12, 2020, the district court entered an order dismissing the
complaint and this action without prejudice. It found that the 11/02/2020 Complaint
was signed and dated and had been submitted on a proper court-approved form. But
the court determined the complaint was nonetheless deficient because its second page
identified the plaintiff using a name other than “Leila McCoy.” In addition, McCoy
had failed to submit the required signed IFP long form. Because she had failed to
comply with the September 16 order within the time allowed, the district court
dismissed the complaint and action without prejudice.
DISCUSSION
1. Dismissal
We review a district court’s dismissal under Rule 41(b) for an abuse of
discretion. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161
(10th Cir. 2007). Rule 41(b) provides that “[i]f the plaintiff fails to . . . comply with
. . . a court order, a defendant may move to dismiss the action.” “Although the
language of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule
has long been interpreted to permit courts to dismiss actions sua sponte for a
plaintiff’s failure to . . . comply with the . . . court’s orders.” Olsen v. Mapes,
333 F.3d 1199, 1204 n.3 (10th Cir. 2003). And when the action is dismissed without
prejudice, “a district court may, without abusing its discretion, enter such an order
without attention to any particular procedures.” Nasious, 492 F.3d at 1162.
Because McCoy proceeds pro se, we liberally construe her pleadings, but we
do not act as her advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
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1991). She raises several arguments that we construe as attempts to show an abuse of
discretion. She complains the district court failed to accommodate her visual
disability because it did not provide “accessible audio format instructions” and “plain
text fillable forms.” Aplt. Opening Br. at 2; see also id. at 4. But she does not
explain how the failure to provide these accommodations prevented her from
complying with the district court’s order. She completed and filed the proper IFP
long form, for example—she just failed to sign it. But she signed other pleadings,
showing she was familiar with signature requirements. And even after the district
court specifically explained to her that the IFP form was deficient due to her failure
to sign it, she still failed to submit a signed form. She has not shown the visual
accommodations she mentions excuse her lack of compliance.
McCoy also complains the district court “dismissed the case claiming [she] did
not use the correct form however the form [she used] came directly off the pro se
clinic website for the court.” Id. at 2. But the district court did not dismiss this case
because McCoy used the wrong forms. It dismissed because the complaint
purportedly contained inaccurate information concerning the plaintiff’s identity 1 and
because the IFP form was not signed.
1 The record suggests that the allegedly incorrect name McCoy used in her
amended complaint was in fact her birth name. See R. at 105. But she does not
challenge this aspect of the district court’s ruling, and we therefore need not
determine whether this was an appropriate reason for dismissal under Rule 41(b).
See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have
declined to consider arguments that are not raised, or are inadequately presented, in
an appellant’s opening brief.”).
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McCoy further claims she electronically filed the “long form” to request a fee
waiver, and that the form she filed met the requirements for a waiver. See id. at 3.
But again, the form was not signed as required. The district court therefore did not
abuse its discretion in dismissing based on non-compliance with its previous order.
2. Sealing of Case
In its final order the district court restricted the public’s access to the filings
and orders on its docket and redacted McCoy’s address. Those restrictions remain in
effect in district court. We take judicial notice that the district court has also sealed
at least three other cases brought by McCoy involving similar subject matter.
We provisionally sealed the entire appeal. But we issued an order directing
McCoy to show cause whether and why her address and/or the filings in this appeal
needed to remain sealed. She has filed a response.
A party seeking to file court records under seal must overcome a
presumption, long supported by courts, that the public has a common-law
right of access to judicial records. To do so, the parties must articulate a
real and substantial interest that justifies depriving the public of access to
the records that inform our decision-making process.
Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135-36
(10th Cir. 2011) (citations and internal quotation marks omitted).
McCoy asserts that she and her children are survivors of domestic violence and
human trafficking, are the subject of state-court protective orders, and are at risk of
being killed if they are located. The docket, the record, and the filings in this appeal
reflect her street address, and the panel has determined it is appropriate to redact that
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information. To the extent McCoy seeks to seal other information in this case,
however, she has failed to satisfy her burden. We therefore order as follows:
1. The clerk of this court shall unseal this appeal.
2. The record on appeal and any documents separately filed under seal (e.g.
her motion to proceed IFP in this court) shall remain under seal.
3. The clerk shall redact McCoy’s address, including her telephone number
and email address, from the court’s docket and from orders, pleadings, and
correspondence filed in this appeal, including accompanying envelopes.
CONCLUSION
McCoy has failed to show the district court abused its discretion by dismissing
this case under Fed. R. Civ. P. 41(b). We therefore affirm the dismissal. Her request
for appointment of counsel is denied. We grant her motion to proceed without
prepayment of costs or fees on appeal. This appeal shall be unsealed, but the record
on appeal shall remain under seal and the clerk shall redact McCoy’s address,
including her telephone number and email address, from this court’s docket and from
orders, correspondence, and pleadings filed in this appeal.
Entered for the Court
Joel M. Carson III
Circuit Judge
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