STEPHEN PLATO McRAE v. Federal Bureau of Prisons

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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STEPHEN PLATO McRAE,
Plaintiff - Appellant,
v.
FEDERAL BUREAU OF PRISONS;
IRON COUNTY CORRECTIONAL
FACILITY; PURGATORY
CORRECTIONAL FACILITY; SGT.
CHENEY; SGT. SHAFER; SGT.
FIELDING,
Defendants - Appellees.
No. 21-4033
(D.C. No. 2:17-CV-00066-RJS)
(D. Utah)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, KELLY, and McHUGH, Circuit Judges.
_________________________________
Plaintiff-appellant Stephen Plato McRae, acting pro se, filed a federal prisoner
civil rights complaint in January 2017 under Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district court screened the
* 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 Federal
Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 1, 2021
Christopher M. Wolpert
Clerk of Court
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complaint and ordered Mr. McRae to resolve numerous deficiencies. Mr. McRae
amended the complaint twice in response to the district court’s orders, but he did not
respond in a timely manner to the district court’s third and final order to correct
deficiencies. Thus, in January 2020, the district court dismissed the action for failure
to prosecute. More than three months after the district court dismissed the action,
Mr. McRae moved to alter or amend the judgment under Federal Rule of Civil
Procedure 60(b). He argued that, despite his effort to notify the court of his new
address, he had not received the court’s order to amend his complaint until after the
action had been dismissed. The district court denied the Rule 60(b) motion, and
Mr. McRae appeals that decision. For the following reasons, we vacate the order
denying Mr. McRae’s Rule 60(b) motion and remand to the district court.
I. BACKGROUND
In January 2017, Mr. McRae, acting pro se, filed a prisoner civil rights
complaint against the Federal Bureau of Prisons and others, complaining about the
conditions at the prisons and his lack of medical care. The district court screened the
complaint pursuant to 28 U.S.C. § 1915A 1 and identified numerous deficiencies. 2 In
1 Because Mr. McRae’s complaint has never passed the district court’s
screening, none of the defendants has been summoned, and none has appeared in this
appeal.
2 The district court listed the following deficiencies in the original complaint:
(a) improperly names Federal Bureau of Prisons as a defendant under
Section 1983, which is meant to support actions against state and local
defendants.
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mid-June 2017, the district court provided Mr. McRae guidance on how to cure the
deficiencies and ordered him to do so within thirty days. More than thirty days later,
in August 2017, Mr. McRae submitted a first amended complaint that contained
many of the same deficiencies. Again, in September 2018, the district court ordered
Mr. McRae to amend his first amended complaint to cure the deficiencies within
thirty days. More than a year passed before Mr. McRae responded to the order.
(b) improperly names Iron County and Purgatory Correctional Facilities as
defendants, though they are not independent legal entities that may sue or
be sued.
(c) fails to provide an affirmative link between specific defendants and
specific civil rights violations.
(d) inappropriately alleges civil rights violations on a respondeat-superior
theory.
(e) does not state a proper legal-access claim (see below).
(f) is perhaps supplemented with claims from documents (including a
motion for preliminary injunctive relief) filed since the Complaint and
“Amended Complaint,” which claims should be included in an amended
complaint, if filed, and will not be treated further by the Court unless
properly included.
(g) refers to John-Doe types, without giving detailed information that
would allow them to be identified.
(h) appears to try to bring claims against other defendants who are referred
to only in the Complaint’s text and not named in the Complaint’s heading.
(i) requests injunctive relief, the granting of which would require
confirmation that Plaintiff is still in whatever facility from which he
requests the injunctive relief.
(j) inappropriately alleges civil-rights violations on the basis of denied
grievances.
ROA Vol. 1 at 37–38.
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During that time, the district court issued two orders to show cause why the action
should not be dismissed. Mr. McRae eventually submitted a deficient second
amended complaint on October 1, 2019.
A few weeks later, Mr. McRae notified the district court that his address was
changing, as he had done on prior occasions when the Department of Corrections
reassigned him to different facilities. 3 On October 31, 2019, the district court
received and stamped Mr. McRae’s notice of being transferred to a facility in
Florence, Colorado. Unlike the previous change-of-address notices Mr. McRae
submitted, this notice was not recorded on the court docket.
On November 13, 2019, the district court gave Mr. McRae a final chance to
amend his complaint and ordered him to do so within thirty days. This order,
however, was mistakenly mailed to Mr. McRae’s prior address at the Weber County
Correctional Facility in Ogden, Utah. The order was returned to the district court
because Mr. McRae was no longer in custody at that facility. Mr. McRae, who never
received the order, did not meet the court’s deadline.
In January 2020, the district court dismissed the action with prejudice for
failure to prosecute under Federal Rule of Civil Procedure 41(b). 4 Again, the district
3 During this litigation, Mr. McRae submitted at least five other notices that
his address had changed, and those notices were all recorded on the docket.
4 Although the district court did not explicitly state Mr. McRae had failed to
provide the district court with a notice of his change of address, it heavily implied
this was the cause of the failure to prosecute through the citations and quotations it
used to support the order. As noted, Mr. McRae did not fail to provide notice to the
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court mailed the decision and order dismissing the action to the Ogden, Utah address,
and it was returned to the district court because Mr. McRae was no longer housed in
that facility.
Two months later, in March 2020, the Federal Public Defender mailed copies
of the docket and the two undelivered court orders to Mr. McRae at his new facility
in Florence, Colorado. Then, in April 2020, Mr. McRae filed a pro se motion to alter
or amend the judgment. In the motion, Mr. McRae stated he did not receive the
court’s November 2019 order to cure defects in the second amended complaint until
late March 2020—approximately two months after the district court dismissed the
action for failure to prosecute—despite his diligent notification to the court of his
address change.
Construing Mr. McRae’s filing as a motion for relief from judgment under
Federal Rule of Civil Procedure 60(b)(1), the district court denied it. The district
court reasoned that Mr. McRae “never specifie[d] what specifically kept him from
amending his Second Amended Complaint between November 13, 2019, when
amendment was ordered, and January 16, 2020, when the case was finally
dismissed.” ROA Vol. 1 at 114 (internal citations omitted). 5
district court. Rather, the properly filed notice of change of address was never
entered on the case docket.
5 There is no information in the record about whether the district court mailed
the decision and order denying the Rule 60(b) motion to Mr. McRae’s correct
address, but the fact that he appealed shortly thereafter suggests he received the
order.
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Mr. McRae filed a notice of appeal nine days after the district court denied the
post-judgment motion.
II. DISCUSSION
A. Scope of Appeal
As applicable here, Federal Rule of Appellate Procedure 4 provides, “[t]he
notice of appeal may be filed by any party within 60 days after entry of the judgment
or order.” Fed. R. App. P. 4(a)(1)(B); see also Fed. R. Civ. P. 77(d)(2) (“Lack of
notice of the entry does not affect the time for appeal or relieve . . . a party for failing
to appeal within the time allowed, except as allowed by Federal Rule of Appellate
Procedure (4)(a).”). But if a motion for relief under Rule 60 is filed no later than
twenty-eight days after the judgment is entered, then the time to appeal the judgment
runs “from the entry of the order disposing [that] motion.” Fed. R. App. P.
4(a)(4)(A)(iii). If a Rule 60(b) motion is filed more than twenty-eight days after the
judgment is entered, then the time to appeal the order on that motion is “within 60
days after entry of the . . . order.” Id. at 4(a)(1)(B).
Mr. McRae filed his Rule 60(b) motion more than 28 days after the district
court entered the judgment, so the time to appeal the judgment ran from January 16,
2020, the date of the judgment. Mr. McRae filed his notice of appeal over a year
later. It was therefore not timely to appeal the judgment. But the notice was filed a
little over a week after the district court denied the motion to amend the judgment,
making it timely to appeal the district court’s denial of the post-judgment Rule 60(b)
motion. Accordingly, we limit our review to the denial of the Rule 60(b) motion.
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B. Rule 60(b) Motion
We review an order on “a Rule 60(b) motion only for an abuse of discretion.”
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996). “An abuse of
discretion occurs when the district court’s decision is arbitrary, capricious, or
whimsical, or results in a manifestly unreasonable judgment.” United States v.
Weidner, 437 F.3d 1023, 1042 (10th Cir. 2006) (quotation marks omitted). “Under
the abuse of discretion standard, we will not disturb a trial court’s decision absent a
definite and firm conviction that the [district] court made a clear error of judgment or
exceeded the bounds of permissible choice in the circumstances.” United States v.
Dunn, 557 F.3d 1165, 1170 (10th Cir. 2009) (internal quotation marks omitted). “The
denial of a [Rule 60(b)] motion will be reversed only if we find a complete absence
of a reasonable basis and are certain that the decision is wrong.” Johnson v. Spencer,
950 F.3d 680, 701 (10th Cir. 2020) (quotation marks omitted). We also liberally
construe pro se motions and appeal briefs such as Mr. McRae’s. Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008).
As relevant here, “the court may relieve a party . . . from a final judgment,
order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect.”
Fed. R. Civ. P. 60(b)(1). To determine whether neglect is excusable, courts take
“‘account of all relevant circumstances surrounding the party’s omission,’” including
“‘the danger of prejudice to the [opposing party], the length of delay and its potential
impact on judicial proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the movant acted in good
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faith.’” Jennings v. Rivers, 394 F.3d 850, 856 (10th Cir. 2005) (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). “Fault in the
delay remains a very important factor—perhaps the most important single factor—in
determining whether neglect is excusable.” Id. at 856–57 (quotation marks omitted).
Relief under Rule 60(b) “is extraordinary and may only be granted in exceptional
circumstances.” Beugler v. Burlington N. & Santa Fe Ry. Co., 490 F.3d 1224, 1229
(10th Cir. 2009) (quotation marks omitted).
On appeal, Mr. McRae raises the same argument and supports it with the same
evidence he used in his motion. Specifically, he says he submitted a notice of change
of address to the district court in a timely fashion in October 2019, and he supports
this contention by attaching a copy of the court-stamped notice. He contends the
district court did not properly document the address change, which deprived him of
receiving the November 2019 order until late-March 2020. The record supports his
argument because (1) the October 2019 notice of change of address, which the court
acknowledged as received, is not listed on the district court’s docket, and (2) the
subsequent November 2019 order to amend the second amended complaint and the
January 2020 order dismissing the action were both mailed to his prior location and
returned to the district court because Mr. McRae was no longer in custody there. In
his motion and on appeal, Mr. McRae has clearly specified what kept him from
amending his second amended complaint between November 2019 and January
2020—he did not receive the court’s order to do so until March 2020 despite his
efforts to keep his address updated with the court.
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The district court denied the Rule 60(b) motion, stating Mr. McRae had not
provided any justification for failing to respond to the November 2019 order within
the time limit prescribed. As described above, however, Mr. McRae explained he had
not received the court’s order until after it had dismissed the action, which is
corroborated by the failure to update his address on the court docket and the return to
the court of the materials sent to his prior facility. Thus, the ground stated by the
district court for its decision to deny the Rule 60(b) motion is not supported by the
record.
To be sure, the district court may have been frustrated by Mr. McRae’s
consistently late responses to its prior orders. However, the district court elected to
grant Mr. McRae another opportunity to cure the defects in his complaint. And
Mr. McRae plausibly alleges he did not respond to that order in a timely fashion
because, through no fault of his own, he did not receive it. Accordingly, Mr. McRae
suggests his failure to respond was inadvertent and excusable.
The district court failed to consider Mr. McRae’s argument, and its reason for
denying the motion was not supported by the record. This was an abuse of discretion.
See Clyma v. Sunoco, Inc., 594 F.3d 777, 783 (10th Cir. 2010) (“[A] clear example of
an abuse of discretion exists where the trial court fails to consider . . . the facts upon
which the exercise of discretionary judgment is based.” (internal quotation marks
omitted)); Hartzell v. Honda Motor Co. Ltd., No. 90-4016, 1991 WL 50540, at *2
(10th Cir. Apr. 8, 1991) (unpublished) (determining a district court did not abuse its
discretion by denying a Rule 60(b) motion when the district court weighed the
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evidence supporting the motion against the finality of the judgment). As a result, we
vacate the district court’s order and remand to afford the district court an opportunity
to consider Mr. McRae’s argument and the accompanying evidence that through no
fault of his own the order instructing him to correct remaining deficiencies in the
complaint was not received until after the district court dismissed the action. In doing
so, we express no opinion as to whether the 60(b) motion should be granted, and we
place no restrictions on the district court’s ability to consider all other pertinent
considerations, including fault, timing, and Mr. McRae’s good faith.
C. In Forma Pauperis
Mr. McRae submitted a motion to proceed on appeal in forma pauperis under
the Prisoner Litigation Reform Act (“PLRA”). After a thorough review of
Mr. McRae’s affidavit, we grant the motion. This does not absolve Mr. McRae of the
requirement to pay the fees associated with this appeal, which must be paid in full
through partial payments pursuant to 28 U.S.C. § 1915.
III. CONCLUSION
For the foregoing reasons, we VACATE the district court’s order on the Rule
60(b) motion and REMAND to allow the district court to consider Mr. McRae’s
stated arguments. We also GRANT Mr. McRae’s motion to proceed in forma
pauperis without prepayment of costs or fees under the PLRA.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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