Becker v. Walcher

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS November 20, 2017
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RICHARD RICE, and Arapahoe
County Inmates,
Plaintiffs,
v. No. 17-1047
(D.C. No. 1:16-CV-02638-LTB)
SHERIFF DAVID WALCHER, in his D. Colorado
official and individual capacities;
ARAPAHOE COUNTY DETENTION
FACILITY,
Defendants - Appellees.
________________________
RAYMOND BECKER,
Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
After examining the briefs and the appellate record, this court has
determined unanimously that oral argument would not materially assist 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This order and judgment is not binding precedent except under the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.
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.
Petitioner, Richard Rice, is a Colorado state inmate housed at the Arapahoe
County Correctional Facility. Proceeding pro se, he brought a civil rights
complaint pursuant to 42 U.S.C. § 1983, alleging unsafe and unsanitary
conditions at the facility, outrageous conduct by deputies, and the denial of
inmates’ basic human needs. A United States Magistrate Judge ordered Rice to
file an amended complaint, clarifying the claims being asserted. In response,
Rice submitted a declaration containing additional, general allegations. Another
inmate at the Arapahoe County Correctional Facility, Raymond Becker, also filed
a declaration complaining of conditions at the facility and referencing various
examples of alleged misconduct by prison deputies and staff.
On November 21, 2016, Rice filed a motion for class certification. This
pleading was also signed by Becker. The magistrate judge denied the motion on
December 9, 2016. In that order, the magistrate judge reminded Rice of his
obligation to file an amended complaint. Rice, thereafter, filed a “pro se
supplement to complaint” together with a motion to add Becker as a plaintiff.
These pleadings were also signed by Becker. An additional “pro se supplement to
complaint” signed by both Rice and Becker was filed on December 29, 2016.
On January 18, 2017, the district court dismissed Rice’s complaint without
prejudice. After referencing all the pleadings and other documents filed by Rice,
-2-
the court concluded none complied with the magistrate judge’s order to file an
amended complaint.
Rice and Becker filed a joint notice of appeal. Rice’s motion to proceed in
forma pauperis (“ifp”) on appeal was denied by the district court. Because Rice
failed to pay the appellate filing fee or file an ifp motion with this court, his
appeal was dismissed for failure to prosecute on May 17, 2017. Becker filed an
ifp motion and an appellate brief. Becker, however, was not a party below and
did not move to intervene. He, therefore, does not have standing to appeal the
dismissal of Rice’s complaint without prejudice. Hutchinson v. Pfeil, 211 F.3d
515, 518-19 (10th Cir. 2000) (holding a proposed plaintiff has no substantive
interest in the outcome of an action when the dismissal by the district court was
not a ruling on the merits). Accordingly, this appeal is dismissed for lack of
appellate standing. Becker’s motion to proceed ifp is denied and he is reminded
of his obligation to immediately remit any unpaid balance of the appellate filing
fee.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-3-