Priestley v. Priestley

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 8, 2014
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
JOHN PRIESTLEY, JR.,
Petitioner - Appellant,
v. No. 14-6079
(D.C. No. 5:12-CV-00323-D)
MICHAEL G. PRIESTLEY, Trustee; (W.D. Okla.)
BILL SHEPPARD; JOHN PRIESTLEY
SR., LIVING TRUST; and PATRICK
PRIESTLEY
Defendants - Appellees.
ORDER AND JUDGMENT*
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
The district court dismissed John Priestley Jr.’s suit without prejudice for failure to
timely serve defendants as required by Fed. R. Civ. P. 4(m). The district court noted that
Priestley Jr. had previously been granted numerous extensions of time in which to serve
the complaint and amended complaints. On October 24, 2013, the district court granted
Priestley Jr. one final forty-five day extension in which to perfect service. He failed to do
so, and the district court subsequently dismissed Priestley Jr.’s suit without prejudice to
*
After examining the briefs and the 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). This 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 This order and judgment is not binding precedent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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
refiling and denied Priestley Jr.’s Motion to Amend Complaint. It also denied his motion
to proceed on appeal in forma pauperis (“IFP”), concluding that any appeal taken would
not be in good faith.
Dismissal Without Prejudice
We review the district court's dismissal of appellant's complaint without prejudice
for failure to perfect service under an abuse of discretion standard. Scott v. Hern, 216 F.3d
897, 912 (10th Cir. 2000). As Priestley Jr. is pro se, we afford his pleadings a liberal
construction. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
Having reviewed Priestley Jr.’s Opening Brief, we conclude that the district court
did not abuse its discretion in dismissing the complaint without prejudice. Priestley Jr.’s
only assertion regarding his failure to serve process appears to be a disagreement with the
district court over the amount of “due diligence” necessary to permit service by
publication. Appellant’s Br. 1. As the district court correctly noted, due diligence is to be
assessed on the facts and circumstances of a given case. Here, Priestley Jr. did no more
than request that the United States Marshals personally serve the defendants at three
Arizona addresses and, after personal service proved unsuccessful, provide the United
States Marshals with the exact same Arizona addresses in an attempt to serve the
defendants with alias summonses by mail. The district court did not abuse its discretion
in determining that such efforts did not constitute “due diligence” and in dismissing
Priestley Jr.’s complaint without prejudice.
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Denial of Motion to Amend Complaint
As the district had previously dismissed Priestley Jr.’s claim, it correctly denied his
Motion to Amend Complaint.
Leave to Proceed in Forma Pauperis
Under 28 U.S.C. § 1915, any court of the United States may grant pauper status to
“allow indigent persons to prosecute, defend or appeal suits without prepayment of
costs.” Coppedge v. United States, 369 U.S. 438, 441 (1962). While Priestley Jr. is not a
prisoner as defined by 28 U.S.C. § 1915, “‘[s]ection 1915(a) applies to all persons
applying for IFP status, and not just to prisoners.’” Salgado-Toribio v. Holder, 713 F.3d
1267, 1270 (10th Cir. 2013) (quoting Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312
(10th Cir. 2005)). Here, under 28 U.S.C. § 1915(a)(3), the district court certified that any
appeal would not be taken in good faith and denied Priestley Jr.’s motion to proceed in
forma pauperis on appeal. In light of that action, we will only grant pauper status if we
conclude that the appeal contains a non-frivolous argument. See Rolland v. Primesource
Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007).
Turning to Priestley Jr.’s motion, for substantially the reasons stated by the district
court, we similarly determine that this appeal is not taken in good faith and that Priestley
Jr. has failed to show the existence of a reasoned, nonfrivolous argument on the law and
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facts in support of the issues raised on appeal. We remind him that he must pay the filing
and docket fees in full to the clerk of the district court.
ENTERED FOR THE COURT
Gregory A. Phillips
Circuit Judge
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