Jackson v. Jackson , 377 F. App'x 829 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
May 14, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DAVID JACKSON,
Plaintiff-Appellant,
No. 09-1519
(D. Colo.)
v.
(D.C. No. 09-CV-2150-ZLW-BNB)
VERA JACKSON,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MURPHY, GORSUCH and HOLMES, Circuit Judges.
Plaintiff-Appellant David Jackson, proceeding pro se, 1 has appealed from
the district court’s order dismissing his civil action without prejudice for failure
to cure certain deficiencies. For the reasons discussed below, we AFFIRM the
*
This Order and Judgment is not binding precedent, except under the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 and Tenth Circuit Rule 32.1.
After examining the appellate record, this three-judge panel has determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
1
Because Mr. Jackson is proceeding pro se, we construe his filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam);
Merryfield v. Jordan, 584 F.3d 923, 924 n.1 (10th Cir. 2009).
district court’s dismissal and DENY Mr. Jackson’s motion to proceed on appeal
in forma pauperis.
Mr. Jackson initiated a pro se civil action in the United States District
Court for the District of Colorado by filing a “Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915” and a “Notice of Removal.” Mr. Jackson
did not, however, remove any action to that court. The federal magistrate judge
issued an order directing the clerk to commence a civil action and directing Mr.
Jackson to cure certain deficiencies if he wished to pursue his claims. In
particular, the magistrate judge directed Mr. Jackson to file a complaint in
conformance with the local rules and to submit a notarized affidavit in support of
his motion to proceed in forma pauperis. The magistrate judge’s order informed
Mr. Jackson that if he failed to correct these deficiencies within thirty days, the
court would dismiss the action without prejudice.
Mr. Jackson failed to take any corrective action within the specified thirty-
day period. Instead, he filed a “Motion to Recuse All Magistrate Judges and
Motion for a Jury Trial,” a “Motion for Leave to Proceed On Appeal Without
Prepayment of Costs or Fees,” and a “Certificate of Service.” Because Mr.
Jackson failed to cure his deficient filings, the district court dismissed the action
without prejudice and denied his motions as moot.
Although Mr. Jackson’s action was dismissed without prejudice, leaving
him free to refile in district court, he sought relief in this court. Mr. Jackson filed
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a Notice of Appeal to this court on November 17, 2009, and an Amended Notice
of Appeal on December 18, 2009. He also filed with the district court a motion to
proceed on appeal in forma pauperis pursuant to 28 U.S.C § 1915 and Federal
Rule of Appellate Procedure 24. The district court denied Mr. Jackson’s motion
because it determined that “Plaintiff has not shown the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on
appeal.” R. at 50 (Order, filed Jan. 5, 2010).
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See
Moya v. Schollenbarger, 465 F.3d 444, 448–49 (10th Cir. 2006) (stating that
dismissal of entire action without prejudice is a final, appealable order). We
review for an abuse of discretion the district court’s dismissal without prejudice
of Mr. Jackson’s action for his failure to cure deficiencies. See, e.g., 8 James
Wm. Moore et al., Moore’s Federal Practice ¶ 41.53 (3d ed. 2007) (“When the
dismissal is without prejudice, an abuse of discretion will generally not be found,
because the plaintiff may simply refile the suit.”); cf. Nasious v. Two Unknown
B.I.C.E. Agents, at Arapahoe County Justice Ctr., 492 F.3d 1158, 1161–62, 1162
n.2 (10th Cir. 2007) (reviewing for abuse of discretion dismissals under Federal
Rule of Civil Procedure 41(b) and stating that dismissal without prejudice “allows
the plaintiff another go . . . ; accordingly, a district court may, without abusing its
discretion, enter an order without attention to any particular procedures,” in
contrast to the heightened criteria attendant to a dismissal with prejudice).
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On appeal, Mr. Jackson does not attempt to explain his failure to cure the
deficiencies and does not contest the district court’s dismissal. Instead Mr.
Jackson simply restates his substantive claims. 2 Because we have not been
presented with a basis for finding that the district court abused its discretion, we
affirm its dismissal without prejudice. We would reach this conclusion in any
event because a pro se litigant must comply with the rules of procedure, including
local rules. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Mr. Jackson
was given the opportunity to cure the deficiencies in his filings and failed to do
so. “[D]ismissal is an appropriate disposition against a party who disregards
court orders and fails to proceed as required by court rules.” United States ex rel.
Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005). Because the
dismissal was without prejudice, Mr. Jackson remains free to refile his civil
action in accordance with federal and local rules.
Because we agree with the district court’s assessment that Mr. Jackson’s
appeal lacks a good-faith basis and that he has not presented a reasoned,
nonfrivolous argument on appeal, we also deny Mr. Jackson’s Motion for Leave
2
Mr. Jackson has filed a document styled “Motion for [sic] Correct
Appellant’s Opening Brief and Motion for Supplemental or Amplify [sic]
Authority.” In an effort to give Mr. Jackson every opportunity to present a viable
challenge on appeal, we have considered this document and hereby grant the
motions. The contentions that Mr. Jackson advances in this document, however,
do not alter our assessment of his legal position on appeal: Mr. Jackson offers us
no grounds for finding fault with the district court’s dismissal order.
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to Proceed on Appeal Without Prepayment of Costs or Fees. See 28 U.S.C. §
1915(a)(3); Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1078–79
(10th Cir. 2007). We direct Mr. Jackson to remit the full amount of the appellate
filing fee.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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