Crump v. United States District Court

Appellate Case: 22-1043 Document: 010110679517 Date Filed: 05/04/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 4, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
NORVELL CRUMP,
Plaintiff - Appellant,
v. No. 22-1043
(D.C. No. 1:21-CV-03461-LTB)
UNITED STATES DISTRICT COURT (D. Colo.)
OF SOUTHERN DISTRICT OF WEST
VIRGINIA AT HUNTINGTON,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and ROSSMAN, Circuit Judges.
_________________________________
Federal prisoner Norvell Webster Crump filed a pro se civil rights complaint in the
United States District Court for the District of Colorado. The court ordered him to
(1) submit an amended complaint on the proper form and (2) either pay the filing fee or
file a properly supported motion to proceed in forma pauperis (“ifp”). After finding that
Mr. Crump had failed to provide his inmate trust fund account statement to support ifp
*
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 This order and judgment is not binding precedent,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: 22-1043 Document: 010110679517 Date Filed: 05/04/2022 Page: 2
status, the court dismissed his amended complaint. Mr. Crump appeals and requests
permission to proceed ifp here. Exercising jurisdiction under 28 U.S.C. § 1291, we
vacate dismissal of the amended complaint, remand this matter to the district court, and
grant Mr. Crump’s ifp request.1
I. BACKGROUND
After Mr. Crump filed his complaint, a magistrate judge directed him to submit an
amended complaint on the proper form. He also ordered Mr. Crump to pay the filing fee
or submit an ifp application with a certified copy of his inmate trust fund account
statement. The order warned that failure to cure the deficiencies within 30 days would
result in dismissal.
On January 12, 2022, Mr. Crump filed an amended complaint on the prisoner
complaint form.2 He also filed a request to proceed ifp on the proper form. On January
14, the district court issued an order stating that Mr. Crump had not filed a copy of his
trust account statement with his ifp request and directed him to do so by January 28 or
face dismissal of his amended complaint. Mr. Crump submitted two requests for an
extension of the January 28 deadline, stating he had encountered difficulties in obtaining
1
We liberally construe Mr. Crump’s pro se brief and his filings below, but we do
not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
2
It named as defendants (1) the United States District Court for the Southern
District of West Virginia at Huntington and (2) Henry Lowery of the West Virginia
Department of Corrections. Although Mr. Crump has not listed Mr. Lowery in the case
caption, he included Mr. Lowery as a defendant in the “defendant information” section of
the prisoner complaint form.
2
Appellate Case: 22-1043 Document: 010110679517 Date Filed: 05/04/2022 Page: 3
a copy of his trust account statement. The requests were postmarked on January 25 and
January 27 and reached the clerk’s office on February 2 and 3, but they were not entered
on the docket until February 4. Id. at 25-28; Dist. Ct. Doc. at 7, 8.
On February 4, the district court dismissed Mr. Crump’s amended complaint
without prejudice for failure to cure deficiencies and failure to prosecute. The court said
Mr. Crump had not filed a copy of his trust account statement by the deadline nor
communicated with the court after its January 14 order. The court also denied him leave
to proceed ifp on appeal because any appeal would not be taken in good faith. On appeal,
Mr. Crump attached to his opening brief a certified copy of his trust account statement
dated March 2, 2022. Aplt. Br. at 10-11.
II. DISCUSSION
Mr. Crump argues the district court erred because it did not grant him an extension
of time to file his trust account statement. He asserts that he requested a copy of the
statement from prison officials, but they did not provide it in a timely manner.
The record shows that on January 25 and 27, Mr. Crump mailed requests for an
extension of the January 28 deadline due to difficulties in obtaining a copy of his trust
account statement.3 App., Vol. I at 26, 28. These extension requests reached the clerk’s
3
The extension requests were filed on January 25 and 27 under the prison mailbox
rule. See Milligan v. Matthews, 166 F. App’x 335, 337 (10th Cir. 2006) (unpublished)
(prison mailbox rule applicable to motion to extend); Lockaby v. Young, 42 F. App’x 313,
318 (10th Cir. 2002) (unpublished) (“[T]he ‘prisoner mailbox rule’ provides that an
inmate’s pleadings are deemed filed as of the date on which they are deposited into the
appropriate prison mailing system.”); see also Hall v. Scott, 292 F.3d 1264, 1266 n.1
(10th Cir. 2002) (“[P]ursuant to the ‘mailbox rule,’ a prisoner’s papers are considered
filed as of the date he delivers them to prison officials for mailing.”).
3
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office on February 2 and 3. Id. at 25, 27. They were entered on the docket on
February 4—the same day that the district court issued its order dismissing Mr. Crump’s
amended complaint. Id. at 29; Dist. Ct. Doc. at 7, 8. The district court did not address
Mr. Crump’s extension requests, instead stating that Mr. Crump had not communicated
“in any way” with the court since January 14. App., Vol. I at 30.4
We remand for the district court to consider Mr. Crump’s extension requests. See
Montana v. Hargett, 182 F. App’x 750, 752 (10th Cir. 2006) (unpublished) (remanding
for district court to consider prisoner’s argument that he had requested trust account
statement but prison officials did not deliver it in time).
III. CONCLUSION
We vacate dismissal of the amended complaint, remand this matter to the district
court, and grant Mr. Crump’s application to proceed ifp on appeal.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
Although not precedential, we find the reasoning of the unpublished decisions
cited in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not
precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
4
It appears that Mr. Crump’s requests for extension of time, though received by
the clerk’s office on February 2 and 3 and entered on the docket on February 4, had
understandably not reached the district judge’s attention before he entered the dismissal
order.
4