Sheptin v. Correctional Healthcare Management Contractor Co. ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
August 6, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
LOUIS C. SHEPTIN,
Plaintiff-Appellant,
v. No. 08-1082
(D.C. No. 1:08-cv-00151-BNB)
CORRECTIONAL HEALTHCARE (D. Colo.)
MANAGEMENT CONTRACTOR
COMPANY; JEFFERSON COUNTY
JAIL; TELLER COUNTY JAIL;
SHERIFF, Teller County Jail; Nurse
Jane Doe, Jefferson County Jail;
Nurse Jane Doe, Teller County Jail;
HEWITT, Nurse Practitioner, Teller
County Jail; SANCHEZ, Cpl., Teller
County Jail; NURSE RICCI,
(Dpt. Morland),
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HOLMES, PORFILIO, and ANDERSON, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Louis C. Sheptin appeals pro se from the district court’s dismissal without
prejudice of his action based upon his failure to comply with a court order.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
Mr. Sheptin filed in the United States District Court for the District of
Colorado a pro se complaint for damages related to his medical treatment while
incarcerated in two county jails in Colorado. Along with his complaint, he filed a
“Motion IFP” seeking permission to pursue his claims in forma pauperis (ifp) in
the district court. A magistrate judge entered an order on January 24, 2008,
directing the clerk’s office to commence a civil action, but ordering plaintiff to
cure the deficiencies in his initial filing. Those deficiencies included his failure
to use the court’s standard forms and his failure to file a certified copy of his
prisoner trust fund account statement for the six-month period preceding his
filing. The order gave Mr. Sheptin thirty days to comply or his action would be
dismissed without prejudice.
Mr. Sheptin responded to the court’s order by filing, on the proper forms,
an amended complaint and a motion and affidavit for leave to proceed under
28 U.S.C. § 1915. In lieu of filing his six-month account statement, he stated
under penalty of perjury that he was indigent, and he attached to his motion an
order from a separate action in the United States District Court for the Western
District of Oklahoma granting him leave to proceed ifp. He subsequently filed
another motion and affidavit for leave to proceed under § 1915, again failing to
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file a copy of his six-month account statement. He attached to this motion a copy
of a docket entry by the United States District Court for the Northern District of
Illinois granting his motion to proceed ifp in another separate case. Within the
thirty-day period after the district court’s January 24 order he also filed a
supplement to his complaint, but he never filed his six-month account statement.
The district court denied Mr. Sheptin’s motion for leave to proceed ifp
pursuant to § 1915. The court noted that, in order to proceed ifp, that section
requires a prisoner to submit “‘a certified copy of the trust fund account statement
(or institutional equivalent) for the prisoner for the 6-month period immediately
proceeding the filing of the complaint . . . obtained from the appropriate official
of each prison at which the prisoner is or was confined.’” R., Doc. 11 at 3
(quoting 28 U.S.C. § 1915(a)(2)). Because he failed to file his account statement
within thirty days of the court’s January 24 order, the court dismissed his action
without prejudice and entered judgment on March 4, 2008.
We have jurisdiction to review the district court’s dismissal without
prejudice of Mr. Sheptin’s case. See Moya v. Schollenbarger, 465 F.3d 444, 448
(10th Cir. 2006) (holding that dismissal without prejudice of entire action is final,
appealable order). We review for abuse of discretion a district court’s dismissal
of an action for failure to comply with a court order. Gripe v. City of Enid,
312 F.3d 1184, 1188 (10th Cir. 2002). “An abuse of discretion occurs when a
district court makes a clear error of judgment or exceeds the bounds of
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permissible choice in the circumstances. This occurs when a district court relies
upon an erroneous conclusion of law or upon clearly erroneous findings of fact.”
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143
(10th Cir. 2007) (alteration, citation, and quotation omitted). When the dismissal
is without prejudice, “a district court need not follow any particular procedures.”
Id. at 1143 n.10 (quotation omitted).
Mr. Sheptin sought to file his action without prepayment of the filing fee
under § 1915. It is undisputed that he failed to satisfy one of the statutory criteria
for doing so. On that basis alone, the district court was unable to grant his ifp
application. See Green v. Nottingham, 90 F.3d 415, 417 (10th Cir. 1996).
Despite being warned that his action would be dismissed if he failed to cure all of
the deficiencies in his filing, he did not submit a copy of his six-month certified
account statement within thirty days of the court’s order.
On appeal, he argues that the district court did not take into account his
statement under oath in his first § 1915 motion and affidavit that he is indigent.
But the statute is clear that, in addition to the prisoner’s affidavit of indigency, he
must also file the six-month certified account statement. See 28 U.S.C.
§ 1915(a)(2). He also asserts that, because he was “in transit” and suffering from
a serious illness, he was “unable to keep up with his mail.” Aplt. Opening Br. at
3, 2. It is clear, however, that Mr. Sheptin received the district court’s January 24
order in a timely manner because he promptly responded by curing every defect in
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his filing, with the exception of his failure to submit his account statement.
Lastly, he contends that he informed the district court of his inability to obtain the
certified account statement. But he made no such claim in the district court until
he filed an application for leave to proceed ifp on appeal. In that application he
stated only that an account statement was unavailable, with no explanation as to
why.
We hold that the district court did not abuse its discretion by dismissing
Mr. Sheptin’s action without prejudice based upon his failure to comply with the
court’s order to submit his certified, six-month account statement.
After reviewing his contentions, we conclude that his arguments on appeal
are frivolous. We therefore DISMISS Mr. Sheptin’s appeal and DENY his motion
to proceed ifp. See § 1915(e)(2)(B)(i) (providing that “the court shall dismiss the
case at any time if [it] determines that [the appeal] is frivolous”).1 Mr. Sheptin is
required to immediately remit the full amount of the filing fee. We remind him of
his obligation to pay the filing fee even though his appeal is dismissed.
1
Moreover, it appears that Mr. Sheptin continues to avoid the requirements
for proceeding ifp by submitting in this court a motion form without a signature
by an authorized officer certifying his account statement. See § 1915(a)(2)
(requiring submission of certified account statement). Therefore, we could deny
ifp on that ground, as well as on the basis of the frivolousness of his arguments.
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See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal of appeal
does not relieve appellant of obligation to pay appellate filing fee in full).
Entered for the Court
Stephen H. Anderson
Circuit Judge
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