FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 25, 2017
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Elisabeth A. Shumaker
Clerk of Court
BYRON TYROME TODD,
Plaintiff - Appellant,
v. No. 17-1183
(D.C. No. 1:17-CV-00599-LTB)
THE UNITED STATES; THE STATE OF (D. Colo.)
NEW MEXICO; THE STATE OF
COLORADO,
Defendants - Appellees.
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ORDER AND JUDGMENT*
_________________________________
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
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Byron Todd appeals pro se1 from the district court’s order dismissing without
prejudice his claims against the United States, Colorado, and New Mexico for failure
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 Mr. Todd proceeds pro se, we construe his findings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see
also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must
construe [a pro se litigant’s] arguments liberally; this rule of liberal construction
stops, however, at the point at which we begin to serve as his advocate.”
to prosecute. Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the
judgment and remand for further proceedings.
I. BACKGROUND
Mr. Todd, a Colorado state prisoner, sued the United States under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Investigation, 403 U.S. 388 (1971),
and two states (Colorado and New Mexico) under 42 U.S.C. § 1983, alleging various
civil rights violations.2 In his complaint, filed on March 6, 2017, Mr. Todd requested
money damages and expungement of his criminal records.
On March 31, 2017, a magistrate judge determined sovereign immunity barred
the claims and ordered Mr. Todd to file an amended complaint with cognizable
claims within 30 days, warning that his case would be dismissed without further
notice if he failed to comply. When the district court did not receive an amended
complaint before the deadline expired, it dismissed the case without prejudice for
failure to prosecute and entered judgment in favor of the defendants. It also denied
Mr. Todd leave to proceed in forma pauperis (“ifp”) on appeal, stating that an appeal
would not be taken in good faith. See 28 U.S.C. § 1915(a)(3); Coppedge v. United
States, 369 U.S. 438 (1962).
On appeal, Mr. Todd argues he timely filed an amended complaint but prison
employees “illegally intercepted [his] out going [sic] legal mail for the purpose of
2
The magistrate judge explained that, although the allegations were “difficult
to understand” and “poorly organized,” it appeared Mr. Todd was challenging a
conviction and sentence imposed in 2001. ROA at 56.
2
hindering/preventing [his] access to the courts.” Aplt. Br. at 4. He also moves to
proceed ifp.
II. DISCUSSION
A. Standard of Review
We review for abuse of discretion a district court’s dismissal for failure to
prosecute or to comply with orders. See AdvantEdge Business Group, L.L.C. v.
Thomas E. Mestmaker & Assocs, Inc., 552 F.3d 1233, 1236 (10th Cir. 2009).
B. Analysis
Mr. Todd contends he complied with the district court’s order by filing an
amended complaint within the 30-day window. He explains that he mailed an
amended complaint on April 22, 2017, but prison employees “illegally intercepted”
his outgoing mail. See Aplt. Br. at 3. He also submitted a document to this court
titled “Crowley County Correctional Facility Outgoing Legal Mail Log,” which
contains an entry suggesting that he sent legal mail to the district court on April 22,
2017. We have no additional information about the nature or content of this outgoing
mail.
The district court dismissed Mr. Todd’s action for failure to prosecute,
unaware of his allegation regarding interference with outgoing mail. Though the
court’s dismissal was reasonable given what it knew at the time, we believe it should
have the opportunity to consider this decision with the benefit of the information that
has since come to light.
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III. CONCLUSION
Based on the foregoing, we vacate the district court’s dismissal and remand
with instructions to consider any post-judgment motion Mr. Todd files based on the
arguments he raised here. We also grant Mr. Todd’s application to proceed ifp and
remind him that he is obligated to continue making partial payments until the entire
filing fee has been paid.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
4