April 12, 2022 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF APPEALS… v. Jefferson Cty Jail

FILED
United States Court of Appeals
Tenth Circuit
April 12, 2022
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
BOBBY E. HENARD,
Plaintiff - Appellant,
v.
JEFFERSON CTY JAIL; NURSE
LAVINIA; DEPUTY VALENTINE;
DEPUTY CLIFTON; CHLLPIN QUINN;
L. SAYERS; LAKE WOOD
JOHN/JANE DOES; POLICE DEPT.;
JOHN DOE PROPERTY OWNER OF
SQUIRE PLAZA; PROPERTY
MANAGER DEBERA JANE DOE OF
SQUIRE PLAZA; OWNER OF WEST
COLFAX BUILDING; JOHN DOE
PROPERTY MANAGER TEDDY;
JOHN DOE, 1; OWNER,
Defendants - Appellees.
No. 21-1344
(D.C. No. 1:21-CV-02032-LTB)
(D. Colo.)
ORDER AND JUDGMENT*
Before HOLMES, KELLY, and McHUGH, Circuit Judges.
* This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1(a) and 10th Circuit Rule 32.1(A). 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.
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Plaintiff-Appellant Bobby Henard, proceeding pro se,1 appeals from the
district court’s dismissal of his civil action due to Mr. Henard’s repeated failure
to cure procedural deficiencies identified by the magistrate judge. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291,2 we affirm the district court’s
judgment.
I
Mr. Henard is a pretrial detainee at Jefferson County Jail in Golden,
Colorado. Mr. Henard filed a pro se Prisoner Complaint in the District of
Colorado.3 He presented a long list of grievances: illegal eviction during the
pandemic, excessive force, cruel and unusual punishment, denial of adequate
medical care, denial of access to the courts, racial discrimination, theft of
property, illegal seizure, and denial of Islamic meals in violation of the Equal
Protection Clause and the First Amendment. Mr. Henard also filed a “Motion for
1 Because Mr. Henard appears pro se, we construe his filings liberally,
but do not act as his advocate. See United States v. Parker, 720 F.3d 781, 784 n.1
(10th Cir. 2013).
2 A dismissal without prejudice is appealable where, as here, a district
court order “expressly and unambiguously dismisses a plaintiff’s entire action.”
Moya v. Schollenbarger, 465 F.3d 444, 450 (10th Cir. 2006).
3 Mr. Henard named as Defendants: Jefferson County Jail deputies,
doctors, nurses, and the chaplain; the Lakewood Police Department; and John and
Jane Doe, property owners of Squire Plaza.
2
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Immediate Preliminary Injunction” seeking accommodations for various medical
conditions.
The next day, a magistrate judge ordered Mr. Henard to cure certain
deficiencies in his pleadings. Specifically, Mr. Henard was directed to file his
complaint on a court-approved Prisoner Complaint form, and to either pay the
$402 filing fee or file a motion to proceed in forma pauperis (“IFP”) on the court-
approved form. Additionally, Mr. Henard was instructed to provide addresses for
each Defendant in a specific section of the Prisoner Complaint form. The
magistrate judge cautioned that the action would be dismissed without further
notice if Mr. Henard failed to cure the designated deficiencies within thirty days.
In response, Mr. Henard filed a Notice Identifying Defendants and
Addresses, which provided all known addresses of Defendants. Shortly
thereafter, Mr. Henard filed his IFP motion. However, he failed to cure all of the
deficiencies previously identified by the magistrate judge. Consequently, the
magistrate judge issued a second order again directing Mr. Henard to file his
complaint and provide addresses for Defendants using the court-approved
Prisoner Complaint form. Additionally, the magistrate judge advised that the
names on the caption of Mr. Henard’s IFP motion did not match the names on the
caption of the Prisoner Complaint. Finally, the magistrate judge again warned
3
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Mr. Henard that the action would be dismissed without further notice if the
deficiencies were not cured within thirty days.
In response, Mr. Henard submitted a revised IFP motion and a “Motion to
Cure Deficiencies for Civil Claim” (“Motion to Cure”). The district court
concluded that these filings did not remedy all of the deficiencies that the
magistrate judge had identified. In particular, the court determined that, contrary
to the magistrate judge’s order “to file a complete Prisoner Complaint on the
court-approved form,” Mr. Henard’s Motion to Cure “intersperse[d] some but not
all of the pages of the court-approved Prisoner Complaint form.” R. at 79 (Order
of Dismissal, dated Sept. 30, 2021) (emphasis added).
Consequently, the court entered an order dismissing the complaint without
prejudice pursuant to Federal Rule of Civil Procedure 41(b), noting that Mr.
Henard had “been provided two opportunities to cure specified deficiencies in his
filings, but . . . failed to cure the specified deficiencies within the time allowed.”
Id. The court also denied Mr. Henard leave to proceed IFP on appeal, certifying
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good
faith. Mr. Henard filed a timely notice of appeal and a motion to proceed IFP.
II
Rule 41(b) of the Federal Rules of Civil Procedure authorizes dismissal of
an action “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules
4
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of Civil Procedure] or a court order.”4 FED. R. CIV. P. 41(b). This authority is in
full force even when courts are considering actions brought by pro se litigants: we
have “repeatedly insisted” that such litigants must “follow the same rules of
procedure that govern other litigants.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005) (quoting Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994)).
We review a dismissal under Rule 41(b) for abuse of discretion. See
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007).
That discretion is broad where, as here, the action is dismissed without prejudice,
leaving the litigant free to re-file his complaint. See id. at 1162 (noting that,
because dismissal without prejudice under Rule 41(b) allows a plaintiff to re-
litigate their claim, “a district court may, without abusing its discretion, enter
such an order without attention to any particular procedures”); 8 James Wm.
Moore et al., MOORE’S FEDERAL PRACTICE – CIVIL § 41.53, LEXIS (database
updated Mar. 2022) (“When the dismissal is without prejudice, an abuse of
discretion will generally not be found, because the plaintiff may simply refile the
4 “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 [as here]
to dismiss actions sua sponte for a plaintiff’s failure to . . . comply with the rules
of civil procedure or court’s orders.” Nasious v. Two Unknown B.I.C.E. Agents,
492 F.3d 1158, 1161 n.2 (10th Cir. 2007) (alteration in original) (quoting Olsen v.
Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)).
5
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suit.”); see also Wingfield v. Patrick J. Sullivan Det. Facility, 266 F. App’x 747,
748 (10th Cir. 2008) (unpublished) (“A district court may exercise broad
discretion in determining whether to dismiss a civil action without prejudice for
failing to comply with court orders.”).
We cannot conclude that the district court here abused its discretion in
dismissing Mr. Henard’s action without prejudice. As noted, Mr. Henard is not
exempt from the rules and court orders that govern all litigation. See Garrett, 425
F.3d at 840; Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). And Mr.
Henard was given ample notice on more than one occasion of the deficiencies in
his materials, what he was required to do to cure them, and the consequences if he
did not do so by a specified deadline. Yet he still failed to remedy those
deficiencies. A dismissal without prejudice under these circumstances is not an
abuse of discretion. See United States ex rel. Jimenez v. Health Net, Inc., 400
F.3d 853, 855 (10th Cir. 2005) (“[D]ismissal is an appropriate disposition against
a party who disregards court orders and fails to proceed as required by court
rules.”); see also Durham v. Lappin, 346 F. App’x 330, 333 (10th Cir. 2009)
(unpublished) (affirming dismissal without prejudice where plaintiff repeatedly
refused to comply with the district court and magistrate judge’s orders to file an
amended complaint on the court-approved form); Georgacarakos v. Watts, 368 F.
App’x 917, 918–19 (10th Cir. 2010) (unpublished) (affirming dismissal without
6
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prejudice where plaintiff failed to comply with magistrate judge’s order to file
complaint on the court-approved form); Williams v. Scott, 161 F.3d 19, 1998 WL
648070, at *1 (10th Cir. 1998) (unpublished table decision) (“From our review of
the record, we cannot say that the district court erred in dismissing Plaintiff’s
action for failure to cure the deficiencies necessary to proceed with his civil rights
claim and to proceed IFP.”); Taurus v. U.S. Dep’t of Soc. Sec., 469 F. App’x 706,
707 (10th Cir. 2012) (unpublished) (affirming dismissal without prejudice where
plaintiff failed to cure procedural deficiency after magistrate judge warned that
failure to cure would result in dismissal of the action without further notice).
In any event, Mr. Henard does not dispute, or even address, the district
court’s reason for dismissing his action—that is, his failure to comply with local
rules and the court’s orders. This omission in itself is fatal to Mr. Henard’s
cause. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir.
2015) (“The first task of an appellant is to explain to us why the district court’s
decision was wrong. Recitation of a tale of apparent injustice may assist in that
task, but it cannot substitute for legal argument.”).5 In other words, because we
5 Instead, Mr. Henard simply restates his substantive claim for lack of
medical care. And he also asserts a new grievance regarding mail delays that he
claims affected the court’s receipt of a motion to amend and second preliminary
injunction that he attempted to file. Specifically, while his appellate briefing is at
times difficult to decipher, Mr. Henard appears to contend that he filed a timely
motion seeking to amend the complaint along with a second preliminary
(continued...)
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have not been presented by Mr. Henard with a basis for finding that the district
court abused its discretion, we must uphold the court’s dismissal of his action
without prejudice. See Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011)
(declining to consider an argument that “d[id] not challenge the [district] court’s
reasoning” in rejecting that argument); see also Blackfeather v. Boulder Cnty.
Combine Cts., 606 F. App’x 470, 471 (10th Cir. 2015) (unpublished) (affirming
dismissal without prejudice where “[p]etitioner makes no attempt to excuse his
failure to comply with the magistrate judge’s order to cure the deficiencies or
explain why it was impossible to do so”); Thompson v. Robison, 580 F. App’x
675, 677 (10th Cir. 2014) (unpublished) (affirming dismissal without prejudice
where “[n]owhere in [plaintiff’s] brief does he address the district court’s order
directing him to cure deficiencies in his initial filings, or the court’s subsequent
order dismissing his action for failure to do so”).
5(...continued)
injunction. See Aplt.’s Br. at 2. He claims that those documents were delayed
due to the possible malfeasance of prison officials and COVID-related hardships.
However, even assuming the accuracy of Mr. Henard’s delay assertions relating to
his purported motion to amend, he does not indicate that the purpose of any
proposed amendment was to file a complaint that would be compliant with the
magistrate judge’s order, and that is the only conceivable way such a motion
might be relevant to our analysis. And we are “under no obligation to craft legal
theories” or “supply factual allegations to support [Mr. Henard’s] claim for
relief.” Abdelsamed v. United States, 13 F. App’x 883, 884 (10th Cir. 2001)
(unpublished). In sum, Mr. Henard’s briefing does nothing to challenge the basis
for the district court’s decision, and that failure in itself sounds the death knell
for his appeal.
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III
As for Mr. Henard’s IFP motion, when a district court certifies an appeal is
not taken in good faith the appealing party may still move for leave to proceed
IFP. See Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir.
2007). To do so, however, the appellant must show not only “a financial inability
to pay the required filing fees,” but also “the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on
appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
Mr. Henard’s financial inability to pay the filing fee is clear; he has no
significant assets or current income. But as discussed above, we conclude that
Mr. Henard fails in this appeal to present a reasoned, nonfrivolous argument on
the law and facts that would support setting aside the district court’s judgment.
We therefore deny Mr. Henard’s IFP motion. See, e.g., Thompson, 580 F. App’x
at 677 (denying IFP motion where “[n]owhere in his brief does [plaintiff] address
the district court’s order directing him to cure deficiencies in his initial filings, or
the court’s subsequent order dismissing his action for failure to do so”). Mr.
Henard is directed to immediately remit the full amount of the appellate filing fee.
IV
For the foregoing reasons, we AFFIRM the district court’s judgment
dismissing Mr. Henard’s action without prejudice and DENY his motion to
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proceed IFP on appeal.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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