Cohen v. Longshore

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH October 19, 2010
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

SOLOMON BEN-TOV COHEN,

Plaintiff-Appellant,

v. No. 09-1563

JOHN P. LONGSHORE; UNKNOWN
MAIL CLERK, El Paso County
Sheriff’s Office,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:09-CV-01169-ZLW)

Submitted on the briefs: *

Solomon Ben-Tov Cohen, pro se.

Before KELLY, McKAY, and LUCERO, Circuit Judges.

McKAY, Circuit Judge.

*
After examining Plaintiff’s brief and the 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).
This case is therefore ordered submitted without oral argument.
Because the action was dismissed before service of process on the
defendants, the defendants do not appear in this court on appeal.
 Plaintiff Solomon Cohen, proceeding pro se, appeals from the district

court’s sua sponte dismissal of his civil rights complaint and denial of his motion

to file an amended complaint late. Plaintiff, who was an immigration detainee at

the time the underlying proceedings took place, sought in his amended complaint

to raise claims of false imprisonment and denial of access to the courts. The

district court denied Plaintiff’s motion to amend on three grounds: (1)

untimeliness, (2) his attachment of different exhibits to the three copies of his

amended complaint, and (3) the futility of amendment. The court then dismissed

both the original and amended complaints. On appeal, Plaintiff contends that he

should have been permitted to file his amended complaint and that the claims in

the amended complaint were sufficiently meritorious that they should have been

allowed to proceed.

We review for abuse of discretion the district court’s denial of Plaintiff’s

motion to file an amended complaint. See United States ex rel. Ritchie v.

Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009). Rule 15(a)(2) of

the Federal Rules of Civil Procedure provides that leave to amend should be

freely given “when justice so requires,” and thus “district courts may withhold

leave to amend only for reasons such as ‘undue delay, bad faith, or dilatory

motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue

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of allowance of the amendment, or futility of the amendment.’” Id. (quoting

Foman v. Davis, 371 U.S. 178, 182 (1962) (brackets omitted)).

Plaintiff filed his initial complaint on May 22, 2009, and his first amended

complaint on June 23, 2009. On June 25, the magistrate judge issued an order

directing Plaintiff to file a second amended complaint. Plaintiff sought an

extension of time to file his complaint on July 31, September 2, and October 28.

Each motion for an extension of time was granted, but the magistrate judge

warned him on the last occasion that no further extensions would be granted and

that he had only until November 30 to file his second amended complaint as

directed. In his September and October motions for an extension of time,

Plaintiff explained why he was requesting an extension, with his reasons

including medical issues, his transfer to another facility, and the limitations of the

detention center’s law library. When he finally filed his second amended

complaint, along with a motion for late filing, on December 10, 2009, he

explained that his cancer symptoms had recurred and that he had been feeling

very weak during the past six weeks, which had prevented him from complying

with the deadline for filing his amended complaint.

As the Supreme Court stated in Foman, “undue delay” may be an

appropriate justification for denying a motion to amend. 371 U.S. at 182. In

deciding whether a delay is “undue,” we “focus[] primarily on the reasons for the

delay.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006). “We

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have held that denial of leave to amend is appropriate ‘when the party filing the

motion has no adequate explanation for the delay.’” Id. (quoting Frank v. U.S.

West, Inc., 3 F.3d 1357, 1365-66 (10th Cir. 1993)). For instance, in Woolsey v.

Marion Labs., Inc., 934 F.2d 1452 (10th Cir. 1991), we affirmed the district

court’s denial of a motion to amend that was filed nearly seventeen months after

the filing of the original complaint with no explanation for the delay. Id. at 1462.

In Smith v. Aztec Well Servicing Co., 462 F.3d 1274 (10th Cir. 2006), we affirmed

the district court’s denial of leave to amend where “[t]he plaintiffs offer[ed] no

explanation for their 14-month delay other than the dubious assertion that until

the district court’s ruling at the pre-trial conference, they had no idea an

amendment was necessary.” Id. at 1285 (internal quotation marks and brackets

omitted). By contrast, we concluded in Minter that the district court erred in

striking as untimely an amended claim when the plaintiff gave “an excusable

cause for the delay” in bringing this claim. 451 F.3d at 1207.

In this case, Plaintiff asserted that he filed his amended complaint late—ten

days following the deadline given by the magistrate judge—because of a serious

medical condition. Plaintiff had also provided reasons for his previous extensions

of time, many of which were likewise outside of his control. The district court

gave no consideration to these reasons, but simply held that the motion for late

filing should be denied because Plaintiff had failed to file it in a timely fashion.

We conclude that the district court abused its discretion when it denied the motion

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to file an amended complaint without any consideration of whether Plaintiff had

given an excusable cause for his delay in amending the complaint as directed. In

so holding, we express no opinion as to whether Plaintiff’s explanations did in

fact provide sufficient cause for his delay in complying with the order to file an

amended complaint. We simply hold that the district court erred when it failed to

give any consideration to the adequacy of the reasons Plaintiff provided for the

delay.

The district court’s second reason for its decision was Plaintiff’s

attachment of different exhibits to each copy of the second amended complaint.

The court thus reasoned that Plaintiff had “failed to file a second amended

complaint as directed.” (R. at 163.) However, although dismissal may be “an

appropriate disposition against a party who disregards court orders and fails to

proceed as required by court rules,” United States ex rel. Jimenez v. Health Net,

Inc., 400 F.3d 853, 855 (10th Cir. 2005), we are not persuaded that a pro se

plaintiff’s apparently inadvertent failure to attach identical exhibits to each copy

of his amended complaint is a sufficiently grievous departure from the court’s

rules to warrant denying his motion to amend and dismissing his complaint.

Moreover, we note that the district court did not indicate in its order

whether it was dismissing Plaintiff’s complaint with or without prejudice, and

thus the court’s dismissal must be treated as a dismissal with prejudice. See

Nasious v. Two Unknown BICE Agents, 492 F.3d 1158, 1162 (10th Cir. 2007).

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Although a district court has the discretion to dismiss a case with prejudice for

the failure to comply with the rules of civil procedure or the court’s orders, the

court does not exercise its discretion soundly unless it first considers certain

criteria—specifically, “‘(1) the degree of actual prejudice to the defendant; (2) the

amount of interference with the judicial process; (3) the culpability of the litigant;

(4) whether the court warned the party in advance that dismissal of the action

would be a likely sanction for noncompliance; and (5) the efficacy of lesser

sanctions.’” Id. (quoting Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003)).

In this case, there is no indication that the district court considered any of these

factors before dismissing both the original and the amended complaint.

Furthermore, as in Nasious, these factors do not all weigh in favor of dismissal,

and we see no basis for affirming the court’s decision based on our own

independent assessment of these criteria on appeal. See id. at 1162-63.

Finally, the district court concluded that Plaintiff’s motion to file a late

amended complaint should be denied because the claims he sought to add lacked

merit. Although we generally review for abuse of discretion a district court’s

denial of leave to amend a complaint, when this “denial is based on a

determination that amendment would be futile, our review for abuse of discretion

includes de novo review of the legal basis for the finding of futility.” Miller ex

rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1250 (10th

Cir. 2009). We thus consider de novo whether “it is ‘patently obvious’ that the

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plaintiff could not prevail on the facts alleged, and allowing him an opportunity

to amend his complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). We likewise review de novo a district court’s conclusion that a

complaint should be dismissed because it fails to state a claim upon which relief

may be granted. See Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir. 1995).

In his amended complaint, Plaintiff sought to raise two claims: false

imprisonment and denial of access to the courts. As for the false imprisonment

claim, the district court concluded that this claim lacked merit because Plaintiff

had not invalidated his imprisonment and thus could not recover damages under

Heck v. Humphrey, 512 U.S. 477 (1994), which generally prohibits an individual

from recovering damages in a civil rights action for an allegedly unlawful

confinement where there has not been a favorable termination of the criminal

action on appeal or in a collateral action. Plaintiff argues, however, that Heck

should not bar this action because Plaintiff has no available habeas remedy.

Indeed, Plaintiff in fact sought to invalidate his imprisonment through a 28 U.S.C.

§ 2241 petition but was prevented by his transfer out of Immigration and Customs

Enforcement custody, which mooted his habeas claims. See Cohen Ma v. Hunt,

372 F. App’x 850 (10th Cir. 2010). Under these circumstances, Plaintiff argues,

his false imprisonment claim should not be barred by his failure to obtain relief in

habeas.

The circuits have split on the question of whether the Heck favorable-

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termination requirement applies when the plaintiff lacks an available habeas

remedy. See Vasquez Arroyo v. Starks, 589 F.3d 1091, 1096 (10th Cir. 2009)

(discussing the circuit split but resolving the case on other grounds). In Heck, the

Supreme Court broadly held that, “in order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid, a § 1983

plaintiff must prove that the conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such a determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.” 512 U.S. at 486-87. Although the

petitioner in Heck was still incarcerated when he brought his § 1983 claim, the

Court stated in a footnote that “the principle barring collateral attacks—a

longstanding and deeply rooted feature of both the common law and our own

jurisprudence—is not rendered inapplicable by the fortuity that a convicted

criminal is no longer incarcerated.” Id. at 490 n.10. Based on this dicta and the

Court’s broad language in its holding, several circuits have held that the Heck

favorable-termination requirement prevents § 1983 claims for damages even when

brought by petitioners whose release from custody has made habeas relief

unavailable. See, e.g., Entzi v. Redmann, 485 F.3d 998, 1003 (8th Cir. 2007);

Williams v. Consovoy, 453 F.3d 173, 177-78 (3d Cir. 2006); Randell v. Johnson,

227 F.3d 300, 301 (5th Cir. 2000); Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st

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Cir. 1998).

Other circuits have reached the opposite conclusion, however, based on the

Supreme Court’s subsequent decision in Spencer v. Kemna, 523 U.S. 1 (1998).

See, e.g, Wilson v. Johnson, 535 F.3d 262, 266-68 (4th Cir. 2008); Powers v.

Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 603 (6th Cir. 2007);

Harden v. Pataki, 320 F.3d 1289, 1298-99 (11th Cir. 2003); Nonnette v. Small,

316 F.3d 872, 876-77 (9th Cir. 2002); Huang v. Johnson, 251 F.3d 65, 75 (2d Cir.

2001); Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir. 1999). In Spencer, a

majority of the Court affirmed the dismissal for mootness of a habeas claim

brought by a petitioner who was no longer in custody because the petitioner had

failed to show that he suffered continuing collateral consequences from his parole

revocation following his release. Id. at 14-16. In a concurrence, four Justices

articulated an additional reason why this result was correct—“a former prisoner,

no longer ‘in custody,’ may bring a § 1983 action establishing the

unconstitutionality of a conviction or confinement without being bound to satisfy

a favorable-termination requirement that it would be impossible as a matter of law

for him to satisfy,” and thus “the answer to Spencer’s argument that his habeas

claim cannot be moot because Heck bars him from relief under § 1983 is that

Heck has no such effect.” Id. at 21 (Souter, J., concurring). Justice Stevens

dissented from the majority opinion, concluding that the case should not be moot

based on the petitioner’s interest in vindicating his reputation. Id. at 22-25

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(Stevens, J., dissenting). He agreed with the concurring Justices, however, that a

petitioner without a remedy under the habeas statute may bring an action under §

1983. Id. at 25 n.8.

After discussing the Court’s statements in Heck and Spencer, the Fourth

Circuit explained that its decision to follow the reasoning of the five-Justice

plurality in Spencer was informed by equitable concerns and consideration of the

purpose of § 1983. Wilson, 535 F.3d at 268. The court noted that the purpose of

§ 1983 is to “provid[e] litigants with ‘a uniquely federal remedy against

incursions . . . upon rights secured by the Constitution and laws of the Nation,’”

and that “[b]arring [the plaintiff’s] claim would leave him without access to any

judicial forum in which to seek relief for his alleged wrongful imprisonment.” Id.

(quoting Wilson v. Garcia, 471 U.S. 261, 272-73 (1985)). The Fourth Circuit then

explained that it simply “d[id] not believe that a habeas ineligible former prisoner

seeking redress for denial of his most precious right—freedom—should be left

without access to a federal court.” Id. Similarly, the Eleventh Circuit reasoned in

Harden that, “because federal habeas corpus is not available to a person

extradited in violation of his or her federally protected rights, even where the

extradition itself was illegal, § 1983 must be” available to redress an

unconstitutional extradition. Harden, 320 F.3d at 1299.

The courts that apply the Heck bar to petitioners without a habeas remedy

have reasoned that Heck must be applied according to the broad language of its

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holding unless and until the Supreme Court explicitly holds otherwise. See, e.g.,

Entzi, 485 F.3d at 1003 (“Absent a decision of the Court that explicitly overrules

what we understand to be the holding of Heck, however, we decline to depart

from that rule.”) However, the Supreme Court itself has recognized this issue to

be an unsettled one. See Muhammad v. Close, 540 U.S. 749, 752 n.2 (2004).

Under these circumstances, and in light of the fact that Heck involved a petitioner

who was still incarcerated, we are not persuaded that Heck must be applied to

petitioners without a habeas remedy. We are instead persuaded by the reasoning

of the Second, Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits that we are

free to follow the five-Justice plurality’s approach in Spencer on this unsettled

question of law. We are also persuaded that the Spencer plurality approach is

both more just and more in accordance with the purpose of § 1983 than the

approach of those circuits that strictly apply Heck even to petitioners who have

been released from custody. If a petitioner is unable to obtain habeas relief—at

least where this inability is not due to the petitioner’s own lack of diligence—it

would be unjust to place his claim for relief beyond the scope of § 1983 where

“exactly the same claim could be redressed if brought by a former prisoner who

had succeeded in cutting his custody short through habeas.” Spencer, 523 U.S. at

21 (Souter, J., concurring).

We thus adopt the reasoning of these circuits and hold that a petitioner who

has no available remedy in habeas, through no lack of diligence on his part, is not

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barred by Heck from pursuing a § 1983 claim. The district court therefore erred

in holding that Plaintiff’s false imprisonment claim lacked merit where Plaintiff’s

prior attempt to obtain a favorable termination in habeas was dismissed based on

mootness.

As for the second claim in Plaintiff’s amended complaint, this claim was

based on the alleged refusal by a mail clerk to send Plaintiff’s legal mail.

Plaintiff alleges that, as a result of this refusal, he was unable to file objections to

the magistrate judge’s recommendations in another civil rights case, with the

result that the magistrate judge’s recommendations were adopted by the district

court without de novo review and Plaintiff lost his right to appeal the court’s

decision.

The district court concluded that “[t]he access to the courts claim lacks

merit because Mr. Cohen fails to allege any actual injury in connection with the

preparation of an initial pleading raising a nonfrivolous legal claim in a civil

rights action regarding his current confinement or in an application for a writ of

habeas corpus.” (R. at 164.) For support, the district court cited to Lewis v.

Casey, 518 U.S. 343, 349-55 (1996). In Lewis, the Supreme Court held that a

prison legal library need only provide those resources “that the inmates need in

order to attack their sentences, directly or collaterally, and in order to challenge

the conditions of their confinement.” Id. at 355. The Court also concluded that

the denial-of-access-to-the-courts claims brought by illiterate or non-English-

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speaking inmates turned on whether prison officials were ensuring that these

inmates had “a reasonably adequate opportunity to file nonfrivolous legal claims

challenging their convictions or conditions of confinement.” Id. at 356. Thus, in

the instant case, the district court apparently concluded that any claim of denial of

access to the courts must be premised on either a habeas petition or on a civil

rights action relating to the conditions of confinement.

This reading of Lewis, however, is contrary to our precedent. As we stated

in Simkins v. Bruce, 406 F.3d 1239 (10th Cir. 2005), “[i]n order to provide

inmates a meaningful right of access to the courts, ‘states are required to provide

affirmative assistance in the preparation of legal papers in cases involving

constitutional rights and other civil rights actions related to their incarceration,

but in all other types of civil actions, states may not erect barriers that impede the

right of access of incarcerated persons.’” Id. at 1242 (quoting Snyder v. Nolen,

380 F.3d 279, 290-91 (7th Cir. 2004)). Thus, although Lewis limits the types of

cases in which the prison must provide affirmative assistance, it does not give

free reign to prison authorities to interfere with and impede a prisoner’s pursuit of

other legal actions.

Here, Plaintiff alleges that a mail clerk impeded his right of access to the

courts by refusing to send his legal mail, which prevented him from being able to

file objections to the magistrate judge’s recommendations in another civil action.

As reflected in one of the attachments to Plaintiff’s amended complaint, the

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district court in that action subsequently dismissed several defendants from the

case based on the magistrate judge’s recommendation, noting that “Plaintiff has

failed to file specific written objections to the Magistrate Judge’s

recommendation and is therefore barred from de novo review.” (R. at 118.)

Moreover, as Plaintiff points out, we “have adopted a ‘firm waiver rule’ that

‘provides that the failure to make timely objections to the magistrate’s findings or

recommendations waives appellate review of both factual and legal questions.’”

United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting

Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). As in Simkins, the

alleged prejudice from the mail clerk’s interference “is directly and inextricably

tied to the adverse disposition of his underlying case and the loss of his right to

appeal from that disposition.” 406 F.3d at 1244. Moreover, although Plaintiff’s

claims in the underlying case might well be frivolous, the record contains

insufficient evidence for us to affirm on that basis in this appeal. See id. We thus

conclude that the district court erred in denying the motion to file an amended

complaint and dismissing this claim based on its conclusion that this claim lacked

merit.

For the foregoing reasons, we REVERSE and REMAND the district

court’s order. In so holding, we express no opinion as to the merit or ultimate

disposition of Plaintiff’s claims. We simply hold, in light of the record on appeal,

that the district court erred in denying Plaintiff’s motion to file an amended

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complaint late and dismissing his original and amended complaints for the

reasons given. We GRANT Plaintiff’s motion to proceed in forma pauperis on

appeal but DENY Plaintiff’s request that we order the district court to appoint

counsel to represent Plaintiff on remand.

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