Rodriguez v. State Of Colorado ( 2013 )


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  •                                                                               FILED
    United States Court of Appeals
    Tenth Circuit
    March 22, 2013
    UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    MAYA RODRIGUEZ,
    Plaintiff-Appellant,
    v.                                                            No. 12-1494
    STATE OF COLORADO,                                  (D.C. No. 1:12-CV-02216-LTB)
    (D. Colo.)
    Defendant-Appellee.
    ORDER AND JUDGMENT*
    Before BRISCOE, Chief Judge, 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); 10th Cir. R. 34.1(G). The case is, therefore,
    submitted without oral argument.
    Plaintiff Maya Rodriguez filed a pro se complaint against the State of Colorado
    alleging, as determined by the district court, violations of Section 504 of the
    *
    This order and judgment is not binding precedent, except under the doctrines of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.
    Rehabilitation Act of 1973, 
    29 U.S.C. § 794
    , and a deprivation of her constitutional rights
    pursuant to 
    42 U.S.C. § 1983
    . Exercising its authority under Fed. R. Civ. Proc. 41(b), the
    district court sua sponte dismissed the complaint for failure to comply with Fed. R. Civ.
    Proc. 8. Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we reverse and remand for
    proceedings consistent with this order.
    “We review dismissals under Rule 41(b) for abuse of discretion.” Nasious v. Two
    Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 
    492 F.3d 1158
    , 1161
    (10th Cir. 2007). “But what we consider compliant with this standard depends in great
    measure on the nature of the district court’s dismissal—that is, whether the dismissal was
    ordered with or without prejudice to subsequent attempts at amendment.” 
    Id. at 1161-62
    .
    If a district court dismisses a case without prejudice, it need not follow any specific
    procedure because the plaintiff retains the ability to refile his or her case. 
    Id. at 1162
    . If a
    district court dismisses a case with prejudice, though, “it must first consider certain
    criteria.” 
    Id.
     “[T]hese criteria include (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.
     (quotation omitted).
    The district court here dismissed Rodriguez’s case without prejudice after
    Rodriguez failed to comply with Fed. R. Civ. P. 8. Specifically, the district court held
    that Rodriguez’s amended complaints did not “set forth a short and plain notice of her
    2
    claims showing that she is entitled to relief.” Dist. Ct. Op. at 2; see Fed. R. Civ. P.
    8(a)(2). Thus, the complaints did “not provide enough information to inform the Court or
    the Defendants about the factual basis of the claims.” Dist. Ct. Op. at 2-3. Rodriguez
    filed the amended complaints after a magistrate judge had issued an order saying her
    claims would be dismissed if they were not corrected in accordance with Fed. R. Civ. P.
    8.
    This dismissal without prejudice would normally merit our applying the most
    deferential abuse of discretion standard. However, we treat a dismissal without prejudice
    as a dismissal with prejudice when the statute of limitations has run on the claims.
    Gocolay v. N.M. Fed. Sav. & Loan Ass’n, 
    968 F.2d 1017
    , 1021 (10th Cir. 1992)
    (“Although the district court dismissed Mr. Gocolay’s claim without prejudice, New
    Mexico Federal concedes the dismissal was, for all practical purposes, a dismissal with
    prejudice because the statute of limitations had expired on all Mr. Gocolay’s claims.”).
    This is because “[d]ismissal under circumstances that defeat altogether a litigant’s right to
    redress grievances in the courts is a severe sanction, applicable only in the extreme
    circumstances and should be used as a weapon of last, rather than first, resort.” 
    Id.
    (quotations omitted). We must therefore examine whether the statute of limitations has
    arguably run on Rodriguez’s claims. See Boazman v. Economics Lab., Inc., 
    537 F.2d 210
    , 213 (5th Cir. 1974) (“[W]here the dismissal is without prejudice, but the applicable
    statute of limitations probably bars further litigation, the standard of review of the District
    Court’s dismissal should be the same as is used when reviewing a dismissal with
    3
    prejudice.”).
    The statute of limitations for 
    42 U.S.C. § 1983
     and 
    29 U.S.C. § 794
     claims brought
    in Colorado is two years from the time the cause of action accrued. See Fogle v. Pierson,
    
    435 F.3d 1252
    , 1258 (10th Cir. 2006) (two-year statute of limitations applies to 
    42 U.S.C. § 1983
     claims brought in Colorado); Baker v. Bd. of Regents, 
    991 F.2d 628
    , 631-32 (10th
    Cir. 1993) (holding statute of limitations for 
    29 U.S.C. § 794
     claim same as statute of
    limitations for 
    42 U.S.C. § 1983
     claim). Rodriguez alleges these violations occurred at
    some point in 2010. ROA Vol I. at 69-71. The district court should have considered that
    the two-year statute of limitations may have expired between the filing and the dismissal
    of the complaint.1 Its failure to do so means that, were we to affirm the dismissal without
    prejudice, we would nonetheless almost certainly be putting an end to Rodriguez’s case.
    We do not believe it would be appropriate to affirm without the district court having
    considered that Rodriguez had no notice of the potential consequence of filing a deficient
    amended complaint.2 Cf. Moore v. United States, 
    950 F.2d 656
    , 659 (10th Cir. 1991)
    (“We join those circuits that have declined to apply the waiver rule to a pro se’s litigant’s
    failure to object when the magistrate’s order does not apprise the pro se litigant of the
    consequences of a failure to object to the findings and recommendations.”); Hall v.
    1
    This is not, however, to say that some of these claims will not be time barred.
    Rodriguez filed her complaint on August 20, 2012. The statute of limitations may have
    run then on claims that accrued before August 20, 2010.
    2
    The order of the magistrate judge warned that the complaint would be dismissed
    if not properly amended. But as discussed above, a dismissal without prejudice would not
    normally bar a plaintiff from refiling his or her complaint.
    4
    Bellmon, 
    935 F.2d 1106
    , 1111 (10th Cir. 1991) (“Furthermore, district courts must take
    care to insure that pro se litigants are provided with proper notice regarding complex
    procedural issues involved in summary judgment proceedings.”) (quotation and italics
    omitted).
    We therefore REVERSE and REMAND for further proceedings, and Rodriguez’s
    motion to appeal in forma pauperis is GRANTED.3 We express no opinion regarding
    whether the district court should nonetheless dismiss the case even though Rodriguez may
    be time barred from raising the claims in the future. We simply direct the district court to
    consider the potential consequences of dismissing the case in light of the factors set forth
    in Nasious.
    Entered for the Court
    Mary Beck Briscoe
    Chief Judge
    3
    Our resolution of the in forma pauperis issue rests upon a comparison of the
    forms used in each of our respective courts. The district court denied Rodriguez’s motion
    to proceed IFP on appeal in part because her financial form was not notarized. Her
    motion in the appellate court also lacks notarization. However, the standard form we
    provide to litigants does not appear to make any mention of requiring notarization, unlike
    the district court form, which specifically has a space where the document is to be
    notarized.
    5