Yellowbear v. Norris , 693 F. App'x 737 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 16, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ANDREW JOHN YELLOWBEAR, JR.,
Plaintiff - Appellant,
v. No. 16-8125
(D.C. No. 2:16-CV-00153-ABJ)
SETH NORRIS, Captain, Wyoming (D. Wyo.)
Medium Correctional Institution,
individually and in his official capacity;
CURTIS MOFFAT; MICHAEL
MCMANIS; CHERYL BECKER;
CASEWORKER MCMANIS;
SERGEANT FARRELL; JULIE
TENANT-CAINE; SERGEANT M.
MCCLAIN; RUBY ZIEGLER; DANIEL
SHANNON; DONALD W. TAYSON,
individually,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, BALDOCK, and BRISCOE, 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); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Andrew John Yellowbear, Jr., a pro se Wyoming inmate, appeals the district
court’s revocation of his in forma pauperis (IFP) status and three other adverse rulings.1
Defendants move to dismiss the appeal, asserting we lack jurisdiction to consider the
challenged rulings because none constitute final appealable orders. We agree with
defendants and grant the motion to dismiss for want of jurisdiction.
I
Mr. Yellowbear filed this action under 42 U.S.C. § 1983, alleging violations of his
constitutional and statutory rights. He moved to proceed IFP, averring that the only
income he had received during the previous twelve months was $40 per month from the
Department of Interior. To substantiate his claimed indigence, Mr. Yellowbear attached
a copy of his inmate trust fund account statement from December 1, 2015, through May
26, 2016, reflecting an ending balance of $97.72. Based on this information, the district
court granted his request to proceed IFP.
Defendants subsequently moved to dismiss, claiming Mr. Yellowbear’s allegation
of poverty was untrue. They pointed out that on August 24, 2015, he received a deposit
in his account for $17,483.30 and misrepresented total income of over $19,000 during the
previous twelve months. Mr. Yellowbear responded that he was indigent when he sought
IFP status and 28 U.S.C. § 1915(a)(2) states that courts should only consider the previous
six months of an inmate’s finances, not twelve months. Additionally, Mr. Yellowbear
1
We afford Mr. Yellowbear’s pro se materials a solicitous construction but do
not advocate on his behalf. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir.
2009).
2
asserted the money was not income, but rather probate funds derived from oil and gas
royalties payable to certain Indian tribe members. He argued that under federal law,
these distributions are exempt from any lien or claim. Defendants filed a reply, and
Mr. Yellowbear moved to file a sur-reply. He also requested a hearing on the motion to
dismiss and moved to set a deadline for any potential intervention.
These proceedings resulted in four adverse rulings, which Mr. Yellowbear seeks to
challenge on appeal. First, the court denied him leave to file a sur-reply. Second, a
magistrate judge denied his motion to set a deadline for intervention. Third, the district
court denied defendants’ motion to dismiss the suit. Although the court recognized that
28 U.S.C. § 1915(e)(2)(A) requires a court to “dismiss the case at any time if [it]
determines that . . . the allegation of poverty is untrue,” the court held that dismissal with
prejudice was too severe a sanction for Mr. Yellowbear’s misrepresentation.
Nevertheless, the court ruled that Mr. Yellowbear should have disclosed his receipt of the
funds and argued that he still qualified for IFP status. The court therefore directed
Mr. Yellowbear to pay the required filing fee by December 5, 2016 or have his suit
dismissed with prejudice. Finally, in the same order, the court denied his request for a
hearing as moot. Mr. Yellowbear designated these rulings in his notice of appeal.
To date, Mr. Yellowbear has not paid the district court filing fee, but neither has
the court dismissed the suit. There is also an outstanding motion for partial summary
judgment pending in the district court. Given this posture, defendants have moved to
dismiss this appeal, arguing there is no final order before this court and Mr. Yellowbear
is not barred from proceeding in the district court. They say the district court simply
3
revoked Mr. Yellowbear’s IFP status and directed him to pay his filing fee. Defendants
assert he could pay the fee and then, if the court were to dismiss the action, challenge
both the dismissal and revocation of IFP on direct appeal.2 For his part, Mr. Yellowbear
construes the order revoking IFP as an order denying IFP, which he points out is usually
an immediately appealable collateral order. Similarly, he asserts the other contested
rulings also are appealable collateral orders.
II
Courts of appeals have jurisdiction to review final decisions of the district courts.
See 28 U.S.C. § 1291. Although the denial of a motion to proceed IFP is not a final
order, it is immediately appealable under the Cohen doctrine. See Roberts v. United
States Dist. Court, 339 U.S. 844, 845 (1950) (per curiam) (citing Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541 (1949)); Lister v. Dep’t of Treasury, 408 F.3d 1309,
1310-11 (10th Cir. 2005). “If a truly indigent claimant is not granted IFP status, she is
barred from proceeding at all in the district court.” Lister, 408 F.3d at 1311. In this way,
the denial of IFP “constitute[s] a complete, formal, and in the trial court, final rejection of
a claimed right where denial of immediate review would render impossible any review
whatsoever.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376 (1981) (citation
and internal quotation marks omitted).
2
Alternatively, defendants argue in their merits brief that the IFP issue is moot
because Mr. Yellowbear has accrued three strikes under 28 U.S.C. § 1915(g). We do not
reach this alternative jurisdictional issue and decide this appeal solely on finality grounds.
Cf. D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1229 (10th Cir. 2004) (“We may
address jurisdictional issues in any order we find convenient.”).
4
We have recognized, however, that where the denial of IFP does not bar a
claimant from proceeding in the district court, the order does not fall under the Cohen
doctrine. See Burnett v. Miller, 507 F. App’x 796, 798 (10th Cir. 2013) (unpublished).3
In Burnett, the district court denied IFP because the inmate had accrued three strikes
under 28 U.S.C. § 1915(g). See 507 F. App’x at 797. The inmate appealed the denial of
IFP, but paid the district court filing fee before that court dismissed his case. Id. at 798.
We dismissed the appeal because the order denying IFP did not “bar[] [the inmate] from
proceeding at all in the district court.” Id.Mr. Yellowbear is in a similar situation here. Although he has not paid the district
court filing fee, the court has not dismissed his case and it remains pending. Moreover,
regardless of whether the oil and gas distributions are exempt or whether the district court
should have looked beyond the preceding six months prescribed by § 1915(a)(2) (both of
which are merits issues that we do not consider), Mr. Yellowbear does not deny that he
received the funds and does not contend that he cannot pay the necessary fees.
Therefore, he is not “barred from proceeding at all in district court.” Lister, 408 F.3d at
1311. Presumably, if and when the district court dismisses the suit for failure to pay the
filing fee—or even if Mr. Yellowbear cannot pay the fee and as a result the court
dismisses the action—he will then be able to take an appeal to this court from the
3
Although unpublished orders are generally non-binding, except under the
doctrines of law of the case, res judicata, and collateral estoppel, they “may be relied
on for the purpose of disposing of the issue presented if it has persuasive value with
respect to a material issue in a case and would assist the court in its disposition.”
United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015); see 10th Cir. R.
32.1(A).
5
dismissal order. But we need not speculate on those possibilities because at present the
case continues in the district court and Mr. Yellowbear has not been precluded from
obtaining any review whatsoever. See Arney v. Finney, 967 F.2d 418, 422 (10th Cir.
1992) (“[U]nder the Cohen doctrine, where the denial of immediate review does not
render impossible any review whatsoever, i.e., where rights will not be irretrievably lost
in the absence of an immediate appeal, collateral review is not available.” (internal
quotation marks omitted)).
The other contested rulings also lack finality. The denial of a hearing on the
motion to dismiss was not a final order. See id. Nor was the order denying leave to file a
sur-reply. See Smith ex rel. Thomas v. United States, 340 F. App’x 918, 919 (4th Cir.
2009) (per curiam) (unpublished). This leaves the magistrate judge’s order denying the
motion to set a deadline for potential intervenors. A magistrate judge’s jurisdiction is
prescribed by statute, see 28 U.S.C. § 636, and absent consent of the parties, id.§ 636(c)(1), the district court may designate a magistrate judge to consider certain
dispositive or non-dispositive matters, id. § 636(b). See First Union Mortg. Corp. v.
Smith, 229 F.3d 992, 995 (10th Cir. 2000).
[A] magistrate judge’s authority with respect to each category is
different: Magistrates may issue orders as to non-dispositive pretrial
matters, and district courts review such orders under a “clearly
erroneous or contrary to law” standard of review. 28 U.S.C.
§ 636(b)(1)(A). While magistrates may hear dispositive motions,
they may only make proposed findings of fact and recommendations,
and district courts must make de novo determinations as to those
matters if a party objects to the magistrate’s recommendations.
Id. § 636(b)(1)(B), (C).
6
Id. (internal quotation marks omitted). “[A] magistrate [judge] is not authorized to render
final appealable decisions within the meaning of 28 U.S.C. § 1291, absent both
designation by the district court and consent of the parties under 28 U.S.C. § 636(c),”
Colo. Bldg. & Constr. Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809, 811
(10th Cir. 1989). Here, the magistrate judge rendered a non-dispositive order denying
Mr. Yellowbear’s motion to set a deadline for intervention. This was not a final
appealable order, and it provided no basis for our appellate jurisdiction. Absent a proper
basis for exercising jurisdiction, we must dismiss this appeal.
III
Accordingly, we grant the motion to dismiss. This appeal is dismissed for lack of
jurisdiction.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
7