FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 19, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CORNELIUS HARRIS,
Plaintiff - Appellant,
v. No. 16-1385
(D.C. No. 1:16-CV-00573-LTB)
TKC COZZA-RHODES; CAPTAIN (D. Colo.)
ERWIN; SARA M. REVELL;
JOHN/JANE DOE,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
_________________________________
Cornelius Harris is a federal prisoner appearing pro se.1 Harris filed a petition
for a preliminary injunction and temporary-restraining order seeking injunctive relief.
The district court dismissed the petition without prejudice after Harris failed to cure
deficiencies within the time allotted by the district court. Harris now appeals.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
Because Harris proceeds pro se, we construe his pleadings liberally, but we
do not serve as his advocate. Yang v. Archuletta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the district
court.
BACKGROUND
Because the district court’s dismissal of Harris’s petition turned on procedural
deficiencies, we recount the proceedings in the district court. On March 8, 2016,
Harris filed a petition in the district court, seeking a preliminary injunction and
temporary-restraining order. The petition sought injunctive relief to prevent the
warden and her officers from interfering with a hunger strike that Harris had
undertaken to protest his transfer to the Federal Bureau of Prisons. On March 9,
2016, in response to Harris’s petition, the district court issued an order directing
Harris to cure specific deficiencies. The court instructed Harris to (1) file his claims
on a court-approved form and (2) either submit a request to proceed without
prepayment of fees under 28 U.S.C. § 1915, or pay the filing fee. The district court’s
order informed Harris that he had 30 days to cure these deficiencies, or else the court
would dismiss his petition.
On March 17, 2016, Harris filed an amended petition. As with his initial
petition, he again failed to use the court-approved form and failed to submit a request
to proceed without payment of fees, or (in the alternative) pay the filing fee. On
April 17, 2016, the district court issued a minute order finding that Harris “failed to
comply with the March 9, 2016 Order to Cure as directed.” Minute Order, Doc. 5,
Vol. I at 23, Apr. 17, 2016. Still, the district court gave Harris an additional 30 days
to cure the deficiencies and notified Harris that if he failed to comply, the court
2
would dismiss his action. The court also directed the Clerk of Court to send Harris
court-approved forms for a Prisoner Complaint and a Prisoner’s Motion for Leave to
Proceed Pursuant to 28 U.S.C. § 1915.
On April 25, 2016, Harris responded to the district court’s minute order by
sending a handwritten letter, written by another inmate on Harris’s behalf. The letter
explained that “Harris has been on suicide precautions in which he has been den[ied]
access to pens, paper and any other material needed to respond to the court’s order,”
and that Harris’s arms were recently paralyzed by unnecessary tourniquets that prison
officials had applied after Harris cut the arteries in both arms. Response to Minute
Order, Doc. 6, Vol. I at 24-25, Apr. 25, 2016. On May 24, 2016, expressing concern
for Harris’s well-being, the court ordered the warden or her staff to submit a
statement “addressing [Harris’s] alleged inability to correspond with the Court
(paralyzed hands) and denial of access to writing utensils and the proper Court-
approved forms that he needs . . . to comply with the Court’s March 9, 2016 Order to
Cure Deficiencies.” Order, Doc. 7, Vol. I at 28, 30, May 24, 2016. The court also
reminded Harris that it had directed him to file his claims on a court-approved form
and either pay the $400 filing fee in full or submit a request to proceed in forma
pauperis (“ifp”).
On June 10, 2016, the warden responded to the district court’s concerns. The
warden explained that Harris’s wounds were self-inflicted and that prison officials
had, for limited periods, denied Harris access to writing utensils for fear that he
would harm himself. The warden also stated that Harris’s hands were not paralyzed
3
and that he now had access to writing utensils and Court-approved forms. After
receiving the warden’s statement, the district court issued another order. The court
directed Harris to comply with the March 9, 2016 Order, and gave Harris another 30
days to do so. And again, the court instructed the Clerk of Court to send Harris the
necessary forms.
On July 18, 2016, Harris requested an extension to allow him to cure
deficiencies. The warden filed a response stating that she “did not oppose a
reasonable extension of time for the petitioner to comply with the Court’s March 9,
2016 and June 21, 2016 Orders.” Response to Petitioner’s Motion for Time
Extension, Doc. 21, Vol. I at 108, July 22, 2016. The court gave Harris another 30
days to comply. Then Harris requested that the court send him copies of all the
petitions to allow him to cure deficiencies by giving the correct dates and accounts.
In his request, Harris acknowledged that “on March 9, 2016, the Court entered an
order directing the petitioner to cure deficiencies in that petition.” Request, Doc. 23,
Vol. I at 112, Aug. 5, 2016. The court directed the Clerk of Court to send Harris
copies of his petitions and entered a docket order that “reminded” Harris “that he
[was] required to cure by August 25, 2016, all deficiencies noted in the March 9,
2016 Order.” Minute Order, Doc. 25, Vol. I at 118, Aug. 6, 2016.
On August 22, 2016, Harris used the court-approved prisoner complaint to file
a second amended complaint. Though he complied with the court’s order to use the
prisoner-complaint form, he again failed to pay the filing fee or submit a prisoner’s
motion and affidavit for leave to proceed ifp.
4
On September 1, 2016, the court dismissed Harris’ action. In the dismissal, the
court reviewed the history of the action, noting that it had twice directed the Clerk of
Court to provide Harris with the necessary forms and had given Harris three
extensions. But, because Harris still failed to submit a “Prisoner’s Motion and
Affidavit for Leave to Proceed” in forma pauperis, or pay the $400 filing fee in the
alternative, the district court dismissed the action without prejudice under Federal
Rule of Civil Procedure 41(b) for failure to cure the deficiencies and for failure to
prosecute. Order of Dismissal, Doc. 27, Vol. I at 136-39, Sept. 1, 2016. The court
entered judgment the same day.
DISCUSSION
We review a dismissal for noncompliance with court orders for abuse of
discretion, asking whether the district court made “a clear error of judgment or
exceed[ed] the bounds of permissible choice in the circumstances.” Ecclesiastes
9:10–11–12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007)
(internal brackets omitted) (quoting McEwen v. City of Norman, 926 F.2d 1539,
1553-54 (10th Cir. 1991)). As the procedural history of Harris’s petition shows, the
district court did not abuse its discretion in dismissing Harris’s case without
prejudice. Harris repeatedly failed to comply with the court’s orders after he was
given many opportunities to do so.
Rule 41(b) provides: “If the plaintiff fails . . . to comply with [court] rules or a
court order, a defendant may move to dismiss the action or any claim against it.” We
have held that a district court may dismiss a case sua sponte under Rule 41(b). See
5
Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007). And
Rule 41(b) allows the district court to dismiss an action when a plaintiff fails to
comply with a court order. See Florence v. Decker, 153 F. App’x. 478, 479-80 (10th
Cir. 2005) (unpublished) (affirming district court's order dismissing action without
prejudice because plaintiff failed to pay initial partial filing fee). In this case, we
cannot say that the district court abused its discretion in dismissing Harris’s petition
without prejudice.
Before a district court can dismiss a prisoner’s action for failing to comply
with a fee order under the Prisoner Litigation Reform Act, “the court must at least
give the prisoner an adequate opportunity to comply.” Brown v. Beck, 203 F. App’x
907, 910 (10th Cir. 2006) (unpublished). Here, before dismissing the action, the
district court issued five separate orders directing Harris to pay the fee or file a
motion and affidavit to proceed without prepayment of the fee, and repeatedly
extended the time for Harris to comply. See Campanella v. Utah County Jail, 78 F.
App’x. 72, 73 (10th Cir. 2003) (unpublished) (holding district court did not abuse its
discretion in dismissing action without prejudice because plaintiff failed to pay filing
fee where plaintiff received adequate notice of IFP requirements and had sufficient
time to cure any deficiencies).
Harris asserts that he never received a copy of the district court’s March 9,
2016 Order, so he was unware that the district court had ordered him to either pay the
filing fee or submit a Prisoner’s Motion and Affidavit for Leave to Proceed. Harris
referenced the March 9 Order in his August 5, 2016 Motion Requesting the Petitions
6
Filed in this Case to Cure Deficiencies, acknowledging that “on March 9, 2016, the
Court entered an order directing the petitioner to cure deficiencies in that petition.”
Request, Doc. 23, Vol. I at 112. In that Request, Harris never asked the district court
to send him a copy of the March 9 Order. See id. But even if we assume that Harris
never received the district court’s March 9, 2016 Order, other orders put him on
notice that he needed to cure deficiencies. This includes the district court’s April 17,
2016 Minute Order, to which Harris responded on April 25, and the district court’s
May 24, 2016 Order, directing Harris “to file the claims on a Court-approved form . .
. and either pay the $400 filing fee in full or submit” a request to proceed ifp. Order,
Doc. 7, Vol. I at 28, May 24, 2016; see Brown, 203 F. App’x at 910 (finding adequate
notice after assuming that plaintiff never received one court order because he
received another order notifying him of the complaint’s deficiencies). Harris has
failed to establish that he could not have responded to those orders. For these
reasons, we cannot conclude that the district court abused its discretion in dismissing
Harris’s action without prejudice.
We further note that “dismissal without prejudice is not an extreme sanction
because the remedy is simply to cure the defect and refile the complaint.” Florence,
153 F. App’x. at 480. Thus, Harris can initiate a new action by refiling his petition
and either paying the full filing fee at the start of the litigation or successfully
applying to proceed ifp and then complying with the district court’s orders. See
7
Lemons v. K.C. Mo. Police, 158 F .App’x. 159, 160 (10th Cir. 2005) (unpublished);
House v. Utah, 129 F. App’x. 432, 434 (10th Cir.2005) (unpublished).2
CONCLUSION
For these reasons, we AFFIRM the district court's decision dismissing Harris’s
action without prejudice.
Entered for the Court
Gregory A. Phillips
Circuit Judge
2
We also deny Harris ifp status on appeal. A party can request ifp status on
appeal so long as he shows both a financial inability to pay and a reasoned,
nonfrivolous argument, and follows the procedure mandated by Fed. R. App. P.
24(a)(5). Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1078-79 (10th Cir.
2007). But Harris has not shown the existence of a reasoned, nonfrivolous argument
and so must be denied ifp status.
8