Farrow v. Tulupia

Appellate Case: 21-1027 Document: 010110638864 Date Filed: 01/31/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 31, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
MICHAEL FARROW,
Plaintiff - Appellant,
v. No. 21-1027
(D.C. No. 1:19-CV-02533-LTB-GPG)
TULUPIA, Officer; RAMIREZ, Officer; (D. Colo.)
EDLIN BARRAZA, Officer;
DEANGELIS, Officer; SNELLING,
Officer; BEHRINGER, Officer; RIVAS,
Officer; HULEN, Officer; MARTINEZ,
Officer; OTT, Officer; WELT, Officer;
POLAMIREZ, Officer; GOMEZ, Officer;
HOUSTON, Officer; COSTA, Officer;
KIM HURT, Nurse; LOPEZ, Nurse;
DURMOLA, Nurse; GEORGE
BRAUCHLER; FIELDS, Deputy Director,
Arapahoe County District Attorney,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, MORITZ, and ROSSMAN, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellate Case: 21-1027 Document: 010110638864 Date Filed: 01/31/2022 Page: 2
Michael Farrow, a pro se Colorado prisoner, appeals from a district court order
denying reconsideration of its order dismissing his civil-rights complaint. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.1
BACKGROUND
In September 2019, Farrow sued detention officers, nurses, and district attorneys
for conduct that occurred in 2015 while he was incarcerated in the Aurora, Colorado
Municipal Detention Center. A magistrate judge screened the complaint, noted various
pleading defects, and directed Farrow, who was then incarcerated at the Sterling
Correctional Facility, to file an amended complaint. In February 2020, Farrow filed a
notice of address change indicating he had been transferred to the Buena Vista
Correctional Complex (BVCC) in Buena Vista, Colorado. But he did not file an
amended complaint.
On March 24, 2020, a magistrate judge recommended dismissing the complaint
without prejudice because it lacked a short and plain statement showing Farrow’s
1
Farrow did not file a notice of appeal from the district court’s order denying
reconsideration within thirty days of the order’s entry. See Fed. R. App. P.
4(a)(1)(A) (providing that a notice of appeal in a civil case must be filed within thirty
days of the order or judgment’s entry). But he subsequently filed a motion to reopen
the time to appeal along with a notice of appeal, and he asked the district court to
process the notice once it had addressed his motion. The district court granted the
motion and reopened the time to appeal. See id. 4(a)(6) (allowing the district court to
reopen the time to appeal for 14 days if, among other things, the motion to reopen is
filed within 180 days after the order or judgment is entered). Farrow’s notice of
appeal then became effective, conferring jurisdiction on this court. See N. Am.
Specialty Ins. Co. v. Corr. Med. Servs., Inc., 527 F.3d 1033, 1039-40 (10th Cir. 2008)
(holding that a district court’s grant of a Rule 4(a)(5) motion to extend the appeal
period validated a previously filed notice of appeal).
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entitlement to relief. See Fed. R. Civ. P. 8(a)(2). Specifically, the complaint provided
only conclusory allegations, failed to identify the defendants’ personal participation in
alleged constitutional violations, appeared barred by the statute of limitations and the
doctrine of prosecutorial immunity, and identified no basis for municipal liability. The
district court mailed the recommendation to Farrow at the Buena Vista Correctional
Facility (BVCF), which is one of three facilities at BVCC and has the same address.
The next day, on March 25, Farrow filed a motion seeking appointed counsel.
Also, he indicated he had been transferred on March 17 to the Centennial Correctional
Facility for mental-health treatment and he needed a stay of the proceedings.
Because Farrow was no longer at BVCF, the postal service returned the magistrate
judge’s recommendation to the court as undeliverable. On May 4, the district court
denied Farrow’s request for a stay and appointment of counsel but gave him an additional
thirty days to object to the recommendation. The court mailed both the order extending
time and the magistrate judge’s recommendation to BVCF, as the Colorado Department
of Corrections’ inmate-locator website indicated he had returned there.
Farrow next filed a motion requesting a summary of the court’s actions, stating he
had not received any court document since January 2020. He also provided a notice-of-
address change, dated May 7, confirming his return to BVCF. On May 14, the district
court granted Farrow’s request and mailed a copy of the docket to his BVCF address.
On June 16, the district court noted that Farrow had not filed an objection to the
magistrate judge’s recommendation. The district court then adopted the recommendation
and dismissed Farrow’s complaint for failure to comply with Rule 8.
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On August 7, Farrow filed a “Motion to Alter Judgement [sic],” seeking
reconsideration of the order adopting the magistrate judge’s recommendation and
dismissing his complaint. R. at 120. He stated in an accompanying affidavit that he had
not received the recommendation and that the last document he received was a February
2020 notification that the court had filed his notice of address change.
The district court construed Farrow’s motion as seeking relief under Fed. R. Civ.
P. 60(b),2 and it denied the motion for two reasons. First, the court ruled that Farrow’s
allegations in his affidavit were conclusory and insufficient to rebut the presumption that
he had received the magistrate judge’s March 2020 recommendation. The court
explained that although the recommendation had initially been returned as undeliverable,
it was resent to his BVCF address on May 4 along with the order extending the response
time, and those documents were not returned by the postal service. Nor were any other
court documents returned as undeliverable. Second, the court noted that Farrow failed to
challenge any of the recommendation’s findings or conclusions. Thus, the district court
determined that Farrow presented no extraordinary circumstance to warrant vacating its
order dismissing his complaint.
2
“A litigant seeking reconsideration must file a motion to alter or amend
judgment pursuant to Fed. R. Civ. P. 59(e), or a motion seeking relief from judgment
under Fed. R. Civ. P. 60(b).” Ysais v. Richardson, 603 F.3d 1175, 1178 n.2
(10th Cir. 2010). Rule 60(b) is the appropriate vehicle for reconsideration if the
motion was filed more than 28 days after the judgment’s entry. Id. at 1178 nn.2 & 3.
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DISCUSSION
We review the district court’s denial of a Rule 60(b) motion for an abuse of
discretion. See Lebahn v. Owens, 813 F.3d 1300, 1306 (10th Cir. 2016). “We will not
reverse the district court’s decision on a Rule 60(b) motion unless that decision is
arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (internal quotation
marks omitted). “Rule 60(b) relief is extraordinary and may only be granted in
exceptional circumstances.” Id. (internal quotation marks omitted). Because Farrow is
pro se, “we construe his pleadings liberally, but we do not act as his advocate.” Ford v.
Pryor, 552 F.3d 1174, 1178 (10th Cir. 2008).
Farrow argues the district court erred by concluding he failed to show non-receipt
of the magistrate judge’s recommendation. He contends that his affidavit, by itself,
established non-receipt. We disagree.
“A rebuttable presumption of receipt . . . arise[s] on evidence that a properly
addressed piece of mail is placed in the care of the postal service.” Witt v. Roadway
Express, 136 F.3d 1424, 1429-30 (10th Cir. 1998). Farrow does not argue that the district
court mailed the recommendation to the wrong address on May 4. Indeed, the district
court mailed the recommendation to his BVCF address after checking the inmate-locator
website, and Farrow prepared a notice of address change reflecting BVCF as his address
only a few days later. Unlike the initial mailing of the recommendation in March 2020,
the recommendation and extension order were not returned by the postal service.
Nevertheless, Farrow alleges that the district court “pretended to send [him] orders
that they never actually mailed or intentionally addressed the mail incorrectly so [he]
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would not receive them.” Aplt. Br. at H. But he cites no evidence supporting this
allegation. And although he acknowledged in his affidavit that he could ask the prison’s
mailroom to “provide [him] a copy of all the Legal mail for the 2020 calendar year,” R. at
126, he did not do so to support his motion for reconsideration. We agree with the
district court that Farrow did not rebut the presumption that he received the
recommendation and extension order that were mailed to him in May 2020.
As for the district court’s observation that Farrow did not address in his motion
any of the magistrate judge’s findings or conclusions, Farrow contends that “it was not
appropriate” to raise objections in his motion. Aplt. Br. at F. But one of the functions of
Rule 60(b) is to relieve a party from a judgment entered due to mistake or inadvertence.
See Fed. R. Civ. P. 60(b)(1). Because Farrow did not attempt to show that the magistrate
judge’s recommendation to dismiss his complaint was incorrect, he was not entitled to
relief. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)
(stating that a “motion for reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law”).
We conclude the district court did not abuse its discretion in denying Farrow’s
motion for reconsideration. 3
3
To the extent Farrow challenges the district court’s rulings on matters other
than its denial of reconsideration, such as its denial of court-appointed counsel and a
stay of the proceedings, we lack jurisdiction. See LaFleur v. Teen Help, 342 F.3d
1145, 1153-54 (10th Cir. 2003) (stating that review of the District Court’s “decision
on the post-judgment motion does not include [challenges to] the underlying
judgment or prejudgment orders”).
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CONCLUSION
We affirm the district court’s judgment. We grant Farrow’s motion to proceed on
appeal in forma pauperis.
Entered for the Court
Nancy L. Moritz
Circuit Judge
7