FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 2, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
IRINEO GARCIA,
Plaintiff - Appellant,
v. No. 19-3287
(D.C. No. 5:19-CV-03108-SAC)
DAN SCHNURR; MISTI KROEKER; (D. Kan.)
GERALD SHERIDAN; CHRIS
SCHNEIDER; MICHAEL LAMB;
DAVID GORGES; JEFFREY
PETTIJOHN; NATASHA HAYS; APRIL
RICHARDS; ANGELA WEST; MACY
ROOT; JOE JACKSON; DEB LUNDRY;
DON MEAD; CORIZON; DOUGLAS W.
BURRIS,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and EID, Circuit Judges.
_________________________________
Irineo Garcia, an inmate in the Hutchinson Correctional Facility in
Hutchinson, Kansas (HCF), appearing pro se, appeals the district court’s order
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
dismissing his 42 U.S.C. § 1983 civil rights action against the above-named HCF
officials and employees, which alleged various violations of his constitutional rights.
Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the order and remand for
further proceedings.
Garcia’s complaint alleged that defendants violated his constitutional rights by
(1) improperly responding to and retaliating against him for filing grievances;
(2) failing to provide access to a shower that complied with the Americans with
Disabilities Act (ADA); and (3) not giving him proper post-surgical medication. He
did not file any supporting documentation with his complaint.
Performing its screening function, the district court ordered Garcia to show
cause why his complaint should not be dismissed for failure to state a claim, see
28 U.S.C. § 1915A(a), (b)(1), and gave him an opportunity to file an amended
complaint curing the pleading deficiencies identified in the order. See Hall v.
Bellmon, 935 F.2d 1106, 1109-10 & n.3 (10th Cir. 1991) (recognizing that before
dismissing a pro se prisoner’s complaint sua sponte, the court should give him an
opportunity to remedy the defects in his pleadings).
At Garcia’s request, the court granted an extension through December 20,
2019, to respond to the show cause order and file an amended complaint, but he did
neither. On December 23, the district court dismissed the complaint for failure to
state a claim under § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii).
On December 28, 2019, Garcia filed what he captioned as an “Appeal of
Judgment,” which the district court understandably docketed as a Notice of Appeal.
2
R. at 52. In substance, however, the Appeal of Judgment was a motion to reconsider
the dismissal order, with an attached amended complaint and supporting
documentation. See R. at 52-101. In it, Garcia explained that he attempted to e-file
his amended complaint on the extended deadline but was unable to do so, and was
resubmitting it. He attached an unsworn “Affidavit of Truth” from an HCF staff
member stating “under penalty of perjury” that he or she “e-filed [Garcia’s]
complaint on December 20, 2019.” R. at 54.
In his brief on appeal, Garcia indicates he “e-filed an amended complaint as
directed by the court with supporting documentation on the extended deadline “but
the system was messed up an[d] no one noticed until after” the district court had
entered the dismissal order. Aplt. Br. at 2. Relying on the local rule providing that a
party whose electronic filing “is made untimely as the result of a technical failure
may seek appropriate relief from the court,” D. Kan. R. 5.4.111, Garcia argues the
district court should have “use[d]” the amended complaint he filed with the Appeal of
Judgment, which he said cured the deficiencies identified in the show cause order.
Garcia’s pro se status entitles him to a liberal reading of his pleadings. See
Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). In substance, his
Appeal of Judgment was a motion to reconsider the dismissal order and an amended
complaint filed in response to the show cause order. Because it is apparent from the
district court docket that the court treated his filing as a notice of appeal instead of as
1
Garcia mistakenly cited D. Kan. Rule CR49.11—the criminal counterpart to
Rule 5.4.11—in his brief.
3
a motion to reconsider, we vacate the dismissal order and remand the case to the
district court to rule on the motion to reconsider. In so doing, we express no opinion
about how the district court should rule on the motion and whether the amended
complaint cures the pleading deficiencies identified in the show cause order.
We grant Garcia’s motion to proceed in forma pauperis and remind him of his
obligation under § 1915(b) to make payments until the appellate filing fee is paid in
full.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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