Daly v. People of the United

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUL 30 2004
TENTH CIRCUIT PATRICK FISHER
Clerk
ROBIN D. DALY,
Plaintiff-Appellant,
v. No. 03-1445
(D.C. No. 03-Z-1535)
PEOPLE OF THE UNITED STATES (Colorado)
OF AMERICA, and/or agents therein
and therefore,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
Robin Daly has filed a motion to proceed in forma pauperis on his appeal
from the district court’s dismissal of his complaint for failure to cure filing
deficiencies. We conclude Mr. Daly has failed to state a claim on which relief
may be granted. We therefore deny his motion to proceed in forma pauperis and
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
dismiss his appeal.
Mr. Daly is incarcerated in a state prison in Yakima, Washington. He
initiated this action by filing pro se a letter, a motion for the appointment of
counsel pursuant to 28 U.S.C. § 1915, and a “complaint pursuant to Title 28
U.S.C. sec. 1361.” Rec. at doc. C. On August 11, 2003, a magistrate judge
determined Mr. Daly’s filing was deficient because he neither paid the filing fee
nor filed a motion to proceed in forma pauperis. The judge ordered Mr. Daly to
cure the deficiency within thirty days.
On September 2, Mr. Daly submitted a motion to proceed in forma
pauperis, a complaint, and an uncertified copy of his trust fund account statement.
The in forma pauperis statute requires submission of a “certified copy of the trust
fund account statement (or institutional equivalent) for the prisoner for the 6-
month period immediately preceding the filing of the complaint or notice of
appeal, obtained from the appropriate official of each prison at which the prisoner
is or was confined.” 28 U.S.C. § 1915(a)(2). The § 1915 form used by Mr. Daly
specifically stated the certification requirement.
On September 30, the district court dismissed the complaint without
prejudice for failure to cure the filing defect. A week later, Mr. Daly submitted a
letter to the clerk of this court in which he stated “I would like to appeal [the
district] court’s decision to your court.” Rec. at doc. 9. The clerk construed the
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letter as a misdirected notice of appeal and forwarded it to the district court with
instructions to process it as a notice of appeal. After determining the notice of
appeal contained the same filing deficiency as the complaint itself, the district
court gave Mr. Daly thirty additional days to cure the filing deficiencies with
respect to his appeal. On October 20, he filed a § 1915 motion and affidavit for
leave to proceed on appeal in forma pauperis, but included no account statement.
The district court noted that Mr. Daly’s § 1915 motion of October 20 was
deficient
because the certified trust fund account statement submitted on October 14,
2003, as an attachment to Mr. Daly’s motion for reconsideration [did] not
contain an itemized accounting of all deposits and withdrawals for the six-
month period immediately preceding the filing of the appeal. Such an
account statement is necessary so that the Court is able to calculate the
initial partial filing fee Mr. Daly will owe in this appeal.
See id. at doc. 17. The court gave Mr. Daly thirty days to cure this deficiency.
Finally, on October 27, Mr. Daly submitted a second § 1915 motion and affidavit
for his appeal, this time with a copy of his certified account statement.
In the meantime, on October 14, Mr. Daly had filed a Motion for Rehearing
of the district court dismissal, to which he attached a certified account statement.
This was a motion pursuant to Rule 59(e), which the court denied because “Mr.
Daly’s belated submission of a certified account statement as an attachment to his
liberally construed motion to reconsider does not alter the reason for the
September 30 dismissal.” See id. at doc. 22.
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On November 14, 2003, the district court denied Mr. Daly’s motion to
proceed without prepayment of the appellate filing fee because it found he had
“not shown the existence of a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal.” See id. at doc. 27. Mr. Daly
submitted to this court a renewed motion to proceed without prepayment of the
appellate filing fee.
We first address the jurisdictional questions implicated by this case’s
convoluted procedural background. Within ten days of the district court’s entry
of the judgment dismissing his complaint, Mr. Daly filed in this court a document
the clerk construed as a misdirected notice of appeal. This filing conferred
jurisdiction on the appellate court, despite Mr. Daly’s failure to pay the appellate
filing fee. See F ED . R. A PP . P. 3(a)(1),(2),4(b)(1)(A)(i), 4(d); see also Wisniewski
v. Dir., Office of Workers’ Comp. Programs, 929 F.2d 952, 955 (3d Cir. 1991)
(“[t]he payment of filing and docketing fees is not a jurisdictional requirement of
Rule 3,” citing Parissi v. Telechron, Inc., 349 U.S. 46, 47 (1955) (per curiam)
(payment of filing fee beyond period for filing notice of appeal does not render
appeal untimely)).
After filing the notice of appeal, Mr. Daly filed a document the district
court construed as a timely motion for reconsideration under Rule 59(e). The
Rule 59 motion divested this court of jurisdiction because it caused the underlying
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judgment to lose its finality. See Stone v. I.N.S., 514 U.S. 386, 402-03 (1995)
(Rule 59 motion to alter or amend a judgment filed within ten days of judgment
renders underlying judgment nonfinal and tolls the running of the time for
appeal); F ED . R. A PP . P. 4(a)(4)(A)(iv). As a result, the clerk of this court abated
the appeal pending the outcome of Mr. Daly’s Rule 59 motion in the district
court, noting the appeal would become effective upon the district court’s
disposition of the motion. When the district court resolved the motion by denying
it, the appeal became effective and this court regained jurisdiction.
While a pro se litigant’s pleadings are to be liberally construed, he must
still follow the rules of federal and appellate procedure. Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir. 1994). Under 28 U.S.C. § 1915, it was Mr.
Daly’s responsibility to provide a properly certified account statement in support
of his original motion to proceed in forma pauperis in the district court. If he was
unable to obtain the proper documentation, he should have made the district court
aware of his circumstances. The fact that Mr. Daly ultimately provided proper
account certification to the district court for his § 1915 motion to proceed on
appeal did nothing to cure the defect in his original § 1915 filing with respect to
proceeding in the district court. Mr. Daly’s failure to properly certify his original
filing or cure the deficiency when granted thirty days to do so by the district court
renders untenable his arguments on appeal.
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Accordingly, we conclude Mr. Daly has failed to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). We deny his motion to
proceed in forma pauperis, dismiss his appeal, and order immediate payment of
any unpaid balance remaining on his appellate filing fee.
ENTERED FOR THE COURT
Stephanie K. Seymour
United States Circuit Judge
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