Harvey v. Thompson ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 15, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RICHIE CHARLES HARVEY,
Plaintiff - Appellant,
v. No. 17-4106
(D.C. No. 1:13-CV-00056-DB)
TERRY L. THOMPSON, Sheriff; FNU (D. Utah)
MCLEOD; DEBBIE HALL, Lt.; FNU
SEKULICH; WEBER COUNTY
CORRECTIONAL FACILITY; WEBER
COUNTY CORRECTIONAL FACILITY
MEDICAL DEPARTMENT; FNU
WOODS, Doctor; MATHEW G. BELL,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
_________________________________
Richie Charles Harvey, a Utah state prisoner appearing pro se, appeals the
dismissal of his 42 U.S.C. § 1983 action for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii), failure to follow court orders, and failure to prosecute under D.
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Utah Civ. R. 41-2.1 He also moves to proceed in forma pauperis (IFP). Because the
district court acted within its discretion when it dismissed Harvey’s complaint
without prejudice for failure to prosecute, we affirm.
BACKGROUND
A. Facts2
On February 11, 2013, unidentified corrections officials transferred Harvey
from the San Diego City Jail to the Weber County Correctional Facility. Harvey
suffers from Hepatitis C. At intake, he notified Weber County Correctional Facility
staff that he had Hepatitis C and needed treatment. Because no doctor was on duty, a
nurse, identified as Jane Doe #1, spoke with him and told him that he would see a
doctor in a few days. Harvey alleges that someone from the San Diego City Jail
brought his medical records to the Weber County facility. But a Weber County
corrections deputy, identified as John Doe #1, informed Harvey that any medical
records would be with his belongings, as sent by the San Diego City Jail. Harvey
alleges that the nurse looked in his bags for the records, but that the records weren’t
there. He also alleges that Jane Doe #1 failed or refused to call the San Diego City
Jail to get his medical records. And he alleges that he signed medical releases on
1
We construe a pro se appellant’s complaint liberally. Gaines v. Stenseng, 292
F.3d 1222, 1224 (10th Cir. 2002). But this liberal treatment has limits. Though we
can make allowances for “the [pro se] plaintiff’s failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and sentence construction, or
his unfamiliarity with pleading requirements,” we can’t serve as his advocate. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
2
We’ve taken these fact allegations from Harvey’s pleadings.
2
February 11 and 13, 2013, to enable the San Diego City Jail to release his medical
records to the Weber County facility.
On February 13, 2013, a nurse at the correctional facility drew Harvey’s blood,
which Harvey contends should have independently confirmed his Hepatitis C
diagnosis. Harvey alleges that he explained his medical needs to the nurse during this
appointment.
That same day, February 13, Dr. Woods3 evaluated Harvey. Harvey alleges
that he told Dr. Woods about his Hepatitis C diagnosis but Dr. Woods declined to
provide needed treatment because of the cost. On March 6, 11, and 19, Dr. Woods
saw Harvey for medical appointments. Harvey contends that at each appointment Dr.
Woods refused to treat him for Hepatitis C. He contends that these refusals caused
him liver damage and led to the “wasting of the upper and lower extremities with
other significant and serious weight loss.” R. at 21. And he contends that these
symptoms put Utah Department of Corrections employees on notice of his
deteriorating condition.
In a separate argument, Harvey contends that department of corrections staff
restricted his access to the law library and that the library’s resources are deficient.
B. Procedural History
On April 10, 2013, acting pro se, Harvey sued John Doe #1, Jane Doe #1, Dr.
Woods, and others, under 42 U.S.C. § 1983. He alleged that they had violated his
Fourth, Sixth, Eighth, and Fourteenth Amendment rights by denying him necessary
3
Harvey didn’t provide Dr. Woods’s first name in his first complaint.
3
medical treatment. He also alleged that the defendants had discriminated against him
based on his medical condition and race (Harvey is a person of color).4 He then
moved for a preliminary injunction and for appointment of counsel. Twenty days
later, Harvey moved to amend his complaint.
On December 30, 2013, the district court reviewed Harvey’s complaint under
28 U.S.C. § 1915(e) and concluded that it was deficient for the following reasons: (1)
it “inappropriately allege[d] civil rights violations on a respondeat-superior theory”;
(2) it “state[d] [a] claim in violation of municipal-liability doctrine”; (3) it
“improperly name[d] ‘Weber County Correctional Facility’ (WCCF) and Weber
County Correctional Facility Medical Department’ [sic] as defendants, though they
are not independent legal entities that can sue or be sued”; (4) it “refer[red] to John
Does, without giving detailed information that would allow them to be identified”;
(5) it “allege[d] a conspiracy claim that [wa]s too vague”; (6) and it “ha[d] claims
apparently regarding current confinement; however, the complaint was apparently not
drafted with the help of contract attorneys.” Id. at 95. The district court provided
Harvey with detailed instructions to cure the alleged deficiencies, and gave him 30
days to do so. The court also denied his motions for preliminary injunctive relief and
for appointment of counsel.
On February 20, 2014, well after the 30 days to cure his complaint’s
deficiencies had run, Harvey moved for an extension of time to amend his complaint.
The court granted that motion.
4
Harvey doesn’t specify his race in his pleadings.
4
On August 4, 2014, seven months after the 30-day period had run, the district
court dismissed Harvey’s complaint “without prejudice for failure to state a claim
under § 1915(e)(2)(B)(ii), failure to follow Court orders, and failure to prosecute, see
[D. Utah Civ. R.] 41-2.” Id. at 102.
On April 2, 2015, Harvey moved to reopen his dismissed case. A month later,
he filed his “Supplemental Amended Complaint” against Matthew G. Bell, Weber
County, and Sheriff Terry Thompson. And a month after that, he moved for
appointment of counsel and to amend his complaint for a second time.
On October 8, 2015, the district court granted Harvey’s motion to reopen his
dismissed case and his motion to amend his complaint, but denied his motion to
appoint counsel. And on April 28, 2016, the district court ordered Harvey to cure
deficiencies it had found in his “Supplemental Amended Complaint” within 30 days.
Harvey attempted to appeal the court’s April 28 order to this court, but we dismissed
it as premature. Harvey never filed a Second Amended Complaint.
On October 18, 2016, the district court issued a third order directing Harvey to
cure, within 30 days, the deficiencies in his “Supplemental Amended Complaint.”
The district court reissued this order on April 7, 2017. The court found Harvey’s
“Supplemental Amended Complaint” deficient in this reissued order for the following
reasons: (1) it wasn’t “on the form required by the Court”; (2) it was “in parts and not
in one coherent whole as it must be to proceed”; (3) it “inappropriately allege[d] civil
rights violations on a respondeat-superior theory”; (4) it “state[d] [a] claim in
violation of municipal-liability doctrine”; (5) it “improperly name[d] Weber County
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as a defendant, though it is not an independent legal entities [sic] that can sue or be
sued”; (6) it “refer[red] to John Does, without giving detailed information that would
allow them to be identified”; and (7) it “ha[d] claims apparently regarding current
confinement; however, the complaint was apparently not drafted with the help of
contract attorneys.” Id. at 184–85. The court gave Harvey yet another 30-day period
to cure these deficiencies.
But Harvey never responded. So on June 20, 2017, the district court dismissed
Harvey’s complaint “with prejudice for failure to state a claim under
§ 1915(e)(2)(B)(ii), [to] follow the Court’s Order, and to prosecute his case, see [D.
Utah Civ. R.] 41-2.” Id. at 188. But the judgment entered by the district court
dismissed Harvey’s complaint “without prejudice for failure to prosecute.” Id. at 189
(emphasis added). Eight days later, Harvey filed a notice of appeal with this court.
ANALYSIS
A. Failure to Prosecute
We “may affirm on any ground” supported by the record, but we disfavor
ruling “on legal grounds not considered by the trial court.” Sherman v. Klenke, 653 F.
App’x 580, 595–96 (10th Cir. 2016) (quoting Rimbert v. Eli Lilly & Co., 647 F.3d
1247, 1256 (10th Cir. 2011)); cf. Reedy v. Werholtz, 660 F.3d 1270, 1276 (10th Cir.
2011) (“[W]e may ‘affirm on any ground supported by the record[.]’”). Because we
conclude that the district court didn’t abuse its discretion by dismissing Harvey’s
claims for failure to prosecute, we don’t address the district court’s alternative
grounds for its decision.
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A dismissal without prejudice for failure to prosecute “close[s] the case,” so
we have jurisdiction over this appeal under 28 U.S.C. § 1291. Advantedge Bus. Grp.,
L.L.C. v. Thomas E. Mestmaker & Assoc., Inc., 552 F.3d 1233, 1235 (10th Cir. 2009).
We review for an abuse of discretion an order dismissing an action for failure
to prosecute. Id. at 1236 (citing Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1161 (10th Cir. 2007)). “An abuse of discretion occurs ‘when a district court
relies upon an erroneous conclusion of law or upon clearly erroneous findings of
fact.’” Clowdis v. Colorado Hi-Tec Moving & Storage, Inc., 604 F. App’x 678, 680
(10th Cir. 2015) (quoting Ecclesiastes 9:10–11–12, Inc. v. LMC Holding Co., 497
F.3d 1135, 1143 (10th Cir. 2007)). A district court may sanction a party for failing to
prosecute his case. Advantedge Bus. Grp., L.L.C, 552 F.3d at 1236 (quoting Reed v.
Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002)). “When dismissing a case without
prejudice, ‘a district court may, without abusing its discretion, enter such an order
without attention to any particular procedures.’” Id. (quoting Nasious, 492 F.3d at
1162). Being a harsher remedy, a dismissal with prejudice requires a district court to
“first consider certain criteria.” Id. (citing Nasious, 492 F.3d at 1162).
Harvey contends that the district court erred when it dismissed his complaint
for failure to prosecute. Appellant’s Opening Br. at 2. Over a three-year period, the
court gave Harvey four 30-day extensions to cure his pleadings’ deficiencies. The
court gave Harvey detailed instructions on how he could cure those deficiencies, and
sent him a Pro Se Litigant Guide. Harvey never cured those deficiencies. So the
district court didn’t abuse its discretion by dismissing Harvey’s complaint without
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prejudice for failure to prosecute. See, e.g., Clowdis, 604 F. App’x at 680–81
(determining that a district court didn’t abuse its discretion for dismissing indigent
plaintiff’s complaint for failure to prosecute where the plaintiff failed to provide the
court status reports every 90 days for a year and a half despite being ordered to do
so).
B. Prison Litigation Reform Act (PLRA) & IFP Motion
Section 1915(g) prohibits prisoners from bringing civil actions or appeals
under IFP status if the prisoner has, on three or more occasions, brought an action or
appeal that was dismissed because it was “frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under imminent
danger of serious physical injury.” 28 U.S.C. § 1915(g). Dismissal for failure to
prosecute typically doesn’t count as a PLRA strike. Hafed v. Fed. Bureau of Prisons,
635 F.3d 1172, 1179 (10th Cir. 2011). But where we deny IFP status because we
determine a prisoner’s appellate arguments are frivolous, and then we dismiss the
prisoner’s appeal for nonpayment of fees (also known as failure to prosecute), the
failure to prosecute the appeal may result in a strike under the PLRA. Id. In such a
circumstance, the frivolousness of the prisoner’s arguments is the “‘but for’ cause of”
our “subsequent dismissal” of the prisoner’s claims, so “it would be ‘hypertechnical’
to hold that the resulting dismissal for nonpayment was not a strike.” Id.Here, the district court dismissed Harvey’s claims on three grounds: failure to
state a claim under § 1915(e)(2)(B)(ii); failure to follow court orders; and failure to
prosecute under D. Utah Civ. R. 41-2. The court instructed Harvey to cure pleading
8
deficiencies four times, but Harvey never responded. The district court’s dismissal of
Harvey’s claims for failure to state a claim counts as a strike under the PLRA, and
that strike is effective immediately. Coleman v. Tollefson, 135 S. Ct. 1759, 1764
(2015).
We also determine that Harvey has shown “a financial inability to pay the
required [filing] fees,” but that he hasn’t forwarded “a reasoned, nonfrivolous
argument on the law and facts in support of the issues” he raises on appeal. McIntosh
v. U.S. Parole Comm’n, 115 F.3d 809, 812–13 (10th Cir. 1997) (quoting
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)). So we deny his IFP
motion.
But we don’t assess Harvey a second strike for our dismissal of his appeal.
Unlike in Hafed, we’ve affirmed the district court’s dismissal of Harvey’s claims
because Harvey failed to prosecute those claims before the district court. We’re not
dismissing his appeal for nonpayment of appeal fees (also known as a failure to
prosecute). See Hafed, 635 F.3d at 1179. So though we find Harvey’s arguments on
appeal frivolous, their frivolousness isn’t the “but-for” cause of our decision to
affirm the district court’s dismissal of Harvey’s claims for failure to prosecute. Id.9
CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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