Bowens v. Sterling Correctional Facility , 533 F. App'x 863 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 9, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
SOLOMON BOWENS,
Plaintiff - Appellant,
No. 13-1160
v. (D.C. No. 1:13-CV-00081-LTB)
(D. Colo.)
STERLING CORRECTIONAL
FACILITY; THE WARDEN, in his
individual capacity, Sterling
Correctional [Facility],
Defendant - Appellee.
ORDER AND JUDGMENT *
Before KELLY, HOLMES, and MATHESON, Circuit Judges. **
Plaintiff-Appellant Solomon Bowens, a Colorado state inmate proceeding
pro se, appeals from the dismissal without prejudice of his civil rights complaint,
42 U.S.C. § 1983. Mr. Bowens sought damages for inadequate medical care of
multiple sclerosis. Pursuant to Rule 41(b), Fed. R. Civ. P., the district court
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
dismissed the complaint based upon Mr. Bowens’ failure to comply with a court
order. R. 23-24. The magistrate judge had ordered Mr. Bowens to file an
amended complaint that was legible, sued the proper parties, complied with
pleading requirements, and alleged the personal participation of each named
Defendant. R. 17-22.
Mr. Bowens’ notice of appeal was received on April 19, 2013, two days
after the 30-day deadline. See Fed. R. App. Proc. 4(a)(1). However, Mr. Bowens
submitted a sworn affidavit stating that his notice of appeal was filed in the
correctional facility’s mail system on April 15, 2013; a statement supported by a
copy of the envelope. Based on this evidence, we conclude that Mr. Bowens’
notice of appeal was timely. See Fed. R. App. P. 4(c)(1).
Nothing in the record demonstrates that Mr. Bowens timely filed a second
amended complaint as directed by the February 5, 2013, order. On appeal, he
argues that he requires the assistance of an attorney given his health and also
argues the merits of his claim. However, his filing to this court does not
substitute for his lack of filing in the district court. Accordingly, the district
court did not abuse its discretion in dismissing the complaint. See Cosby v.
Meadors, 351 F.3d 1324, 1326 (10th Cir. 2003) (standard of review).
AFFIRMED. We DENY Mr. Bowens’ motion for leave to proceed without
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prepayment of costs or fees and order immediate payment of the unpaid balance
due.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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