FILED
United States Court of Appeals
Tenth Circuit
March 29, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JAMES RALPH DAWSON, JR.,
Plaintiff - Appellant, No. 09-1402
v. (D. Colorado)
RONALD CARTER and RICHARD (D.C. No. 99-CV-00148-RPM-BNB)
MISCHIARA,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
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); 10 th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
After several false starts detailed more fully below, the 42 U.S.C. § 1983
action filed by plaintiff/appellant James Ralph Dawson, Jr., a prisoner, finally
*
This order and judgment is not binding precedent except under the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.
proceeded to a jury trial. The jury found for the defendants/appellees, Limon
Correctional Facility employees Robert Taylor, Ronald Carter, Debbie Outen,
Richard Mischiara, and John Bowker. Mr. Dawson, proceeding pro se, appeals
several district court rulings relating to defendants Carter and Mischiara issued in
connection with the adverse jury determination. We affirm.
BACKGROUND
During the time period of July through December 1998 (the time relevant to
this action), Mr. Dawson was incarcerated in the Limon Correctional Facility. He
filed his original 42 U.S.C. § 1983 action in 1999, claiming that the defendants
retaliated against him for exercising his First Amendment rights to petition the
government for redress of grievances and acted with deliberate indifference
towards his safety and well being, in violation of the Eighth and Fourteenth
Amendments. Finally, on April 26, 2004, the district court dismissed all of
Mr. Dawson’s claims and issued its judgment on April 27, 2004, on the ground
that Mr. Dawson’s complaint contained a mixture of exhausted and unexhausted
claims. This dismissal concerned Mr. Dawson’s third amended complaint.
Mr. Dawson appealed, and this court reversed and remanded, directing the
court to consider the third amended complaint in light of Ross v. County of
Bernallilo, 365 F.3d 1181 (10 th Cir. 2004), which had been issued during the
course of the appeal. In particular, we observed as follows:
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In Ross, we held that mixed complaints—complaints that include
both exhausted and unexhausted claims—should be dismissed
without prejudice. We also held that a grievance adjudicated on the
merits, even if untimely, could satisfy the exhaustion requirement.
And we held that, under some circumstances, an inmate need not
complete every stage of the grievance process in order for
administrative remedies to be considered exhausted.
Dawson v. Taylor, 128 Fed. Appx. 677, 678 (10 th Cir. 2005) (unpublished) (citing
Ross, 365 F.3d at 1186-87, 1190). Thus, we directed the district court to explore
more fully Mr. Dawson’s complaint, with its mixture of exhausted and
unexhausted claims, and apply the mandate of Ross. We accordingly instructed
the district court as follows:
Once the district court has determined which, if any, claims are
properly exhausted, it should proceed accordingly. If all of Mr.
Dawson’s claims are fully exhausted, then the district court can
proceed to the merits. If the district court remains convinced that
some or all of Mr. Dawson’s claims are unexhausted, an appropriate
remedy is dismissal of the entire complaint without prejudice. Or if
it finds that the complaint is a mixed complaint, the district court
may give Mr. Dawson an opportunity to voluntarily dismiss his
unexhausted claims and proceed with his exhausted claims.
Id. at 678-79 (citing Ross, 365 F.3d at 1190).
Following this remand, the defendants filed another motion to dismiss the
third amended complaint. The district court agreed that the third amended
complaint should be dismissed, but it gave Mr. Dawson the opportunity to file yet
another amended complaint. Mr. Dawson filed a fourth amended complaint on
December 20, 2005. Thereafter, on November 15, 2006, the district court entered
an order for Mr. Dawson to show cause why the civil action should not be
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dismissed for failure to prosecute. Rather than showing cause, Mr. Dawson filed
a motion for default judgment on December 6, 2006. On December 14, 2006, the
defendants filed a motion to dismiss the fourth amended complaint. Also on
December 14, 2006, the Clerk of the district court entered a default as to
defendants Carter and Mischiara, pursuant to Fed. R. Civ. P. 55(a), for failure to
defend. In response to the defendants’ motion to dismiss, Mr. Dawson filed a
document requesting the court to enter a default judgment against the defendants,
and to deny the defendants’ motion to dismiss the fourth amended complaint.
On June 7, 2007, the district court ordered the Clerk to strike the entry of
default that had been entered on December 14, 2006. It also denied Mr.
Dawson’s request for a default judgment, and it denied the defendants’ motion to
dismiss. Thus, the case finally proceeded to a trial before a jury on August 25-28,
2009, which resulted in a jury verdict in favor of the defendants. This appeal,
naming two of those defendants, followed.
Mr. Dawson argues on appeal that: (1) the district court committed plain
error by not following the Tenth Circuit’s remand order; (2) both the district court
and this court abused their discretion “in not granting the Appellant a free
transcript for this appeal”; and (3) the district court abused its discretion by
“striking the Entry of Default Judgment against the Defendants without a hearing
to show good cause.” Appellant’s Op. Br. at 3, 3VI and 3IX.
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DISCUSSION
I. Plain Error:
While it is somewhat difficult to discern Mr. Dawson’s exact arguments, he
generally claims that the district court ignored our decision on remand in Dawson,
“dismiss[ed] Defendants Bowker and Outen, dismissed the entire complaint,” and
then “ordered the Plaintiff’s court appointed attorney to amend the complaint to
state a claim and cause of action that did not exist [and] was never grieved.”
Appellant’s Op. Br. at 2, 3. By invoking the “plain error” standard, Mr. Dawson
essentially concedes that he did not raise this issue below. As the defendants
argue, that is problematic. The “general rule [is] that we do not address
arguments presented for the first time on appeal.” United States v. Mora, 293
F.3d 1213, 1216 (10 th Cir. 2002) (citing Oyler v. Allenbrand, 23 F.3d 292, 299 n.8
(10 th Cir. 1994)); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the
general rule, of course, that a federal appellate court does not consider an issue
not passed upon below.”). In any event, were we to address Mr. Dawson’s
argument, we would find that the district court faithfully followed our instructions
on remand. Accordingly, we find no error in the district court’s decision
following our remand.
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II. Denial of Free Transcript Request:
Next, Mr. Dawson argues that both the district court and this court abused
their discretion when they both refused his request for a free transcript in order to
pursue this appeal. On September 24, 2009, Mr. Dawson filed a prisoner’s
motion and affidavit for leave to proceed on appeal pursuant to 28 U.S.C. § 1915
and Fed. R. App. P. 24. In denying Mr. Dawson’s motion, the district court found
that, “[p]ursuant to 28 U.S.C. § 1915(a)(3), the court finds that this appeal is not
taken in good faith because 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. Vol. 2 at 134. Thus, the district court denied Mr. Dawson’s request
to proceed on appeal in forma pauperis (“ifp”).
On October 23, 2009, Mr. Dawson filed a “Motion for Free Transcripts
Pursuant to 28 U.S.C. § 1915" with this court, citing the same arguments he had
used in the district court. The clerk of our court deferred ruling on the
substantive aspects of Mr. Dawson’s request, and set forth a payment plan of
partial payments to be paid from his prison account.
Section 1915 provides that, “[a]n appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not taken in good faith.” 28
U.S.C. § 1915(a)(3). We agree with the district court that Mr. Dawson’s appeal is
not taken in good faith and Mr. Dawson is therefore not entitled to proceed ifp on
appeal. Accordingly, the district court did not abuse its discretion in applying the
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standard of § 1915 to deny Mr. Dawson’s request to proceed on appeal ifp. We,
too, deny that request.
III Abuse of Discretion in Striking Default Entry:
Finally, Mr. Dawson argues that the district court abused its discretion by
striking the default entered by the district court clerk without a hearing to show
good cause. As indicated above, on December 14, 2006, the defendants filed a
motion to dismiss the fourth amended complaint, while the Clerk of the district
court entered a default, pursuant to Fed. R. Civ. P. 55(a), against the defendants
for failure to defend. The court subsequently ordered the Clerk to strike the entry
of default. Mr. Dawson claims that the court abused its discretion in ordering the
default struck without conducting a hearing.
Fed. R. Civ. P. 55(c) provides that “[f]or good cause shown the court may
set aside an entry of default.” Id. We review a decision to set aside the entry of
default for abuse of discretion. Stjernholm v. Peterson, 83 F.3d 347, 349 n.1 (10 th
Cir. 1996). There is no requirement that the court conduct a hearing before
determining to set aside a default entry. We perceive no abuse of discretion in the
district court’s decision in this matter.
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CONCLUSION
For the foregoing reasons, we AFFIRM the district court. We deny any
outstanding motions.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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