Cohen v. Longshore, et al


[9807601] Remanded and reversed. Terminated on the merits after submissions without oral hearing. Written, signed, published. Judges Kelly, McKay, author; and Lucero. Mandate to issue.

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Cohen v. Longshore, et al Doc. 0 Appellate Case: 09-1563 Document: 01018517479 Date Filed:n i t e d States Court of Appeals U 10/19/2010 Page: 1 T e n t h Circuit FILED PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT O c t o b e r 19, 2010 E l i s a b e t h A. Shumaker C l e r k of Court S O L O M O N BEN-TOV COHEN, Plaintiff-Appellant, v. J O H N P. LONGSHORE; UNKNOWN M A I L CLERK, El Paso County S h e r i f f ' s Office, Defendants-Appellees. N o . 09-1563 APPEAL FROM THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLORADO ( D . C . No. 1:09-CV-01169-ZLW) S u b mi t t e d on the briefs: * S o l o mo n Ben-Tov Cohen, pro se. B e f o r e KELLY, McKAY, and LUCERO, Circuit Judges. M c K A Y , Circuit Judge. After examining Plaintiff's brief and the appellate record, this panel has d e t e r mi n e d unanimously that oral argument would not materially assist in the d e t e r mi n a t i o n 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. Because the action was dismissed before service of process on the d e f e n d a n t s , the defendants do not appear in this court on appeal. * Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 2 P l a i n t i f f Solomon Cohen, proceeding pro se, appeals from the district c o u r t ' s sua sponte dismissal of his civil rights complaint and denial of his motion t o file an amended complaint late. Plaintiff, who was an immigration detainee at t h e time the underlying proceedings took place, sought in his amended complaint t o raise claims of false imprisonment and denial of access to the courts. The d i s t r i c t court denied Plaintiff's motion to amend on three grounds: (1) u n t i me l i n e s s , (2) his attachment of different exhibits to the three copies of his a me n d e d complaint, and (3) the futility of amendment. The court then dismissed b o t h the original and amended complaints. On appeal, Plaintiff contends that he s h o u l d have been permitted to file his amended complaint and that the claims in t h e amended complaint were sufficiently meritorious that they should have been a l l o w e d to proceed. W e review for abuse of discretion the district court's denial of Plaintiff's mo t i o n to file an amended complaint. See United States ex rel. Ritchie v. L o c k h e e d Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009). Rule 15(a)(2) of t h e Federal Rules of Civil Procedure provides that leave to amend should be f r e e l y given "when justice so requires," and thus "district courts may withhold l e a v e to amend only for reasons such as `undue delay, bad faith, or dilatory mo t i v e on the part of the movant, repeated failure to cure deficiencies by a me n d me n t s previously allowed, undue prejudice to the opposing party by virtue -2- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 3 o f allowance of the amendment, or futility of the amendment.'" Id. (quoting F o m a n v. Davis, 371 U.S. 178, 182 (1962) (brackets omitted)). Plaintiff filed his initial complaint on May 22, 2009, and his first amended c o mp l a i n t on June 23, 2009. On June 25, the magistrate judge issued an order d i r e c t i n g Plaintiff to file a second amended complaint. Plaintiff sought an e x t e n s i o n of time to file his complaint on July 31, September 2, and October 28. Each motion for an extension of time was granted, but the magistrate judge w a r n e d him on the last occasion that no further extensions would be granted and t h a t he had only until November 30 to file his second amended complaint as d i r e c t e d . In his September and October motions for an extension of time, P l a i n t i f f explained why he was requesting an extension, with his reasons i n c l u d i n g medical issues, his transfer to another facility, and the limitations of the d e t e n t i o n center's law library. When he finally filed his second amended c o mp l a i n t , along with a motion for late filing, on December 10, 2009, he e x p l a i n e d that his cancer symptoms had recurred and that he had been feeling v e r y weak during the past six weeks, which had prevented him from complying w i t h the deadline for filing his amended complaint. A s the Supreme Court stated in Foman, "undue delay" may be an a p p r o p r i a t e justification for denying a motion to amend. 371 U.S. at 182. In d e c i d i n g whether a delay is "undue," we "focus[] primarily on the reasons for the d e l a y . " Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006). "We -3- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 4 h a v e held that denial of leave to amend is appropriate `when the party filing the mo t i o n has no adequate explanation for the delay.'" Id. (quoting Frank v. U.S. W e s t , Inc., 3 F.3d 1357, 1365-66 (10th Cir. 1993)). For instance, in Woolsey v. M a r i o n Labs., Inc., 934 F.2d 1452 (10th Cir. 1991), we affirmed the district c o u r t ' s denial of a motion to amend that was filed nearly seventeen months after t h e filing of the original complaint with no explanation for the delay. Id. at 1462. In Smith v. Aztec Well Servicing Co., 462 F.3d 1274 (10th Cir. 2006), we affirmed t h e district court's denial of leave to amend where "[t]he plaintiffs offer[ed] no e x p l a n a t i o n for their 14-month delay other than the dubious assertion that until t h e district court's ruling at the pre-trial conference, they had no idea an a me n d me n t was necessary." Id. at 1285 (internal quotation marks and brackets o mi t t e d ) . By contrast, we concluded in Minter that the district court erred in s t r i k i n g as untimely an amended claim when the plaintiff gave "an excusable c a u s e for the delay" in bringing this claim. 451 F.3d at 1207. I n this case, Plaintiff asserted that he filed his amended complaint late--ten d a y s following the deadline given by the magistrate judge--because of a serious me d i c a l condition. Plaintiff had also provided reasons for his previous extensions o f time, many of which were likewise outside of his control. The district court g a v e no consideration to these reasons, but simply held that the motion for late f i l i n g should be denied because Plaintiff had failed to file it in a timely fashion. We conclude that the district court abused its discretion when it denied the motion -4- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 5 t o file an amended complaint without any consideration of whether Plaintiff had g i v e n an excusable cause for his delay in amending the complaint as directed. In s o holding, we express no opinion as to whether Plaintiff's explanations did in f a c t provide sufficient cause for his delay in complying with the order to file an a me n d e d complaint. We simply hold that the district court erred when it failed to g i v e any consideration to the adequacy of the reasons Plaintiff provided for the delay. T h e district court's second reason for its decision was Plaintiff's a t t a c h me n t of different exhibits to each copy of the second amended complaint. The court thus reasoned that Plaintiff had "failed to file a second amended c o mp l a i n t as directed." (R. at 163.) However, although dismissal may be "an a p p r o p r i a t e disposition against a party who disregards court orders and fails to p r o c e e d as required by court rules," United States ex rel. Jimenez v. Health Net, I n c . , 400 F.3d 853, 855 (10th Cir. 2005), we are not persuaded that a pro se p l a i n t i f f ' s apparently inadvertent failure to attach identical exhibits to each copy o f his amended complaint is a sufficiently grievous departure from the court's r u l e s to warrant denying his motion to amend and dismissing his complaint. Moreover, we note that the district court did not indicate in its order w h e t h e r it was dismissing Plaintiff's complaint with or without prejudice, and t h u s the court's dismissal must be treated as a dismissal with prejudice. See N a s i o u s v. Two Unknown BICE Agents, 492 F.3d 1158, 1162 (10th Cir. 2007). -5- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 6 A l t h o u g h a district court has the discretion to dismiss a case with prejudice for t h e failure to comply with the rules of civil procedure or the court's orders, the c o u r t does not exercise its discretion soundly unless it first considers certain c r i t e r i a -- s p e c i f i c a l l y , "`(1) the degree of actual prejudice to the defendant; (2) the a mo u n t of interference with the judicial process; (3) the culpability of the litigant; ( 4 ) whether the court warned the party in advance that dismissal of the action w o u l d be a likely sanction for noncompliance; and (5) the efficacy of lesser s a n c t i o n s . ' " Id. (quoting Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003)). In this case, there is no indication that the district court considered any of these f a c t o r s before dismissing both the original and the amended complaint. Furthermore, as in Nasious, these factors do not all weigh in favor of dismissal, a n d we see no basis for affirming the court's decision based on our own i n d e p e n d e n t assessment of these criteria on appeal. See id. at 1162-63. F i n a l l y , the district court concluded that Plaintiff's motion to file a late a me n d e d complaint should be denied because the claims he sought to add lacked me r i t . Although we generally review for abuse of discretion a district court's d e n i a l of leave to amend a complaint, when this "denial is based on a d e t e r mi n a t i o n that amendment would be futile, our review for abuse of discretion i n c l u d e s de novo review of the legal basis for the finding of futility." Miller ex r e l . S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1250 (10th C i r . 2009). We thus consider de novo whether "it is `patently obvious' that the -6- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 7 p l a i n t i f f could not prevail on the facts alleged, and allowing him an opportunity t o amend his complaint would be futile." Hall v. Bellmon, 935 F.2d 1106, 1110 ( 1 0 t h Cir. 1991). We likewise review de novo a district court's conclusion that a c o mp l a i n t should be dismissed because it fails to state a claim upon which relief ma y be granted. See Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir. 1995). I n his amended complaint, Plaintiff sought to raise two claims: false i mp r i s o n me n t and denial of access to the courts. As for the false imprisonment c l a i m, the district court concluded that this claim lacked merit because Plaintiff h a d not invalidated his imprisonment and thus could not recover damages under H e c k v. Humphrey, 512 U.S. 477 (1994), which generally prohibits an individual f r o m recovering damages in a civil rights action for an allegedly unlawful c o n f i n e me n t where there has not been a favorable termination of the criminal a c t i o n on appeal or in a collateral action. Plaintiff argues, however, that Heck s h o u l d not bar this action because Plaintiff has no available habeas remedy. Indeed, Plaintiff in fact sought to invalidate his imprisonment through a 28 U.S.C. 2241 petition but was prevented by his transfer out of Immigration and Customs E n f o r c e me n t custody, which mooted his habeas claims. See Cohen Ma v. Hunt, 3 7 2 F. App'x 850 (10th Cir. 2010). Under these circumstances, Plaintiff argues, h i s false imprisonment claim should not be barred by his failure to obtain relief in habeas. T h e circuits have split on the question of whether the Heck favorable-7- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 8 t e r mi n a t i o n requirement applies when the plaintiff lacks an available habeas r e me d y . See Vasquez Arroyo v. Starks, 589 F.3d 1091, 1096 (10th Cir. 2009) ( d i s c u s s i n g the circuit split but resolving the case on other grounds). In Heck, the S u p r e me Court broadly held that, "in order to recover damages for allegedly u n c o n s t i t u t i o n a l conviction or imprisonment, or for other harm caused by actions w h o s e unlawfulness would render a conviction or sentence invalid, a 1983 p l a i n t i f f must prove that the conviction or sentence has been reversed on direct a p p e a l , expunged by executive order, declared invalid by a state tribunal a u t h o r i z e d to make such a determination, or called into question by a federal c o u r t ' s issuance of a writ of habeas corpus." 512 U.S. at 486-87. Although the p e t i t i o n e r in Heck was still incarcerated when he brought his 1983 claim, the C o u r t stated in a footnote that "the principle barring collateral attacks--a l o n g s t a n d i n g and deeply rooted feature of both the common law and our own j u r i s p r u d e n c e -- i s not rendered inapplicable by the fortuity that a convicted c r i mi n a l is no longer incarcerated." Id. at 490 n.10. Based on this dicta and the C o u r t ' s broad language in its holding, several circuits have held that the Heck f a v o r a b l e - t e r mi n a t i o n requirement prevents 1983 claims for damages even when b r o u g h t by petitioners whose release from custody has made habeas relief u n a v a i l a b l e . See, e.g., Entzi v. Redmann, 485 F.3d 998, 1003 (8th Cir. 2007); W i l l i a m s v. Consovoy, 453 F.3d 173, 177-78 (3d Cir. 2006); Randell v. Johnson, 2 2 7 F.3d 300, 301 (5th Cir. 2000); Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st -8- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 9 C i r . 1998). Other circuits have reached the opposite conclusion, however, based on the S u p r e me Court's subsequent decision in Spencer v. Kemna, 523 U.S. 1 (1998). See, e.g, Wilson v. Johnson, 535 F.3d 262, 266-68 (4th Cir. 2008); Powers v. H a m i l t o n Cnty. Pub. Defender Comm'n, 501 F.3d 592, 603 (6th Cir. 2007); H a r d e n v. Pataki, 320 F.3d 1289, 1298-99 (11th Cir. 2003); Nonnette v. Small, 3 1 6 F.3d 872, 876-77 (9th Cir. 2002); Huang v. Johnson, 251 F.3d 65, 75 (2d Cir. 2 0 0 1 ) ; Carr v. O'Leary, 167 F.3d 1124, 1127 (7th Cir. 1999). In Spencer, a ma j o r i t y of the Court affirmed the dismissal for mootness of a habeas claim b r o u g h t by a petitioner who was no longer in custody because the petitioner had f a i l e d to show that he suffered continuing collateral consequences from his parole r e v o c a t i o n following his release. Id. at 14-16. In a concurrence, four Justices a r t i c u l a t e d an additional reason why this result was correct--"a former prisoner, n o longer `in custody,' may bring a 1983 action establishing the u n c o n s t i t u t i o n a l i t y of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law f o r him to satisfy," and thus "the answer to Spencer's argument that his habeas c l a i m cannot be moot because Heck bars him from relief under 1983 is that H e c k has no such effect." Id. at 21 (Souter, J., concurring). Justice Stevens d i s s e n t e d from the majority opinion, concluding that the case should not be moot b a s e d on the petitioner's interest in vindicating his reputation. Id. at 22-25 -9- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 10 ( S t e v e n s , J., dissenting). He agreed with the concurring Justices, however, that a p e t i t i o n e r without a remedy under the habeas statute may bring an action under 1 9 8 3 . Id. at 25 n.8. After discussing the Court's statements in Heck and Spencer, the Fourth C i r c u i t explained that its decision to follow the reasoning of the five-Justice p l u r a l i t y in Spencer was informed by equitable concerns and consideration of the p u r p o s e of 1983. Wilson, 535 F.3d at 268. The court noted that the purpose of 1983 is to "provid[e] litigants with `a uniquely federal remedy against i n c u r s i o n s . . . upon rights secured by the Constitution and laws of the Nation,'" a n d that "[b]arring [the plaintiff's] claim would leave him without access to any j u d i c i a l forum in which to seek relief for his alleged wrongful imprisonment." Id. ( q u o t i n g Wilson v. Garcia, 471 U.S. 261, 272-73 (1985)). The Fourth Circuit then e x p l a i n e d that it simply "d[id] not believe that a habeas ineligible former prisoner s e e k i n g redress for denial of his most precious right--freedom--should be left w i t h o u t access to a federal court." Id. Similarly, the Eleventh Circuit reasoned in H a r d e n that, "because federal habeas corpus is not available to a person e x t r a d i t e d in violation of his or her federally protected rights, even where the e x t r a d i t i o n itself was illegal, 1983 must be" available to redress an u n c o n s t i t u t i o n a l extradition. Harden, 320 F.3d at 1299. T h e courts that apply the Heck bar to petitioners without a habeas remedy h a v e reasoned that Heck must be applied according to the broad language of its -10- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 11 h o l d i n g unless and until the Supreme Court explicitly holds otherwise. See, e.g., E n t z i , 485 F.3d at 1003 ("Absent a decision of the Court that explicitly overrules w h a t we understand to be the holding of Heck, however, we decline to depart f r o m that rule.") However, the Supreme Court itself has recognized this issue to b e an unsettled one. See Muhammad v. Close, 540 U.S. 749, 752 n.2 (2004). Under these circumstances, and in light of the fact that Heck involved a petitioner w h o was still incarcerated, we are not persuaded that Heck must be applied to p e t i t i o n e r s without a habeas remedy. We are instead persuaded by the reasoning o f the Second, Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits that we are f r e e to follow the five-Justice plurality's approach in Spencer on this unsettled q u e s t i o n of law. We are also persuaded that the Spencer plurality approach is b o t h more just and more in accordance with the purpose of 1983 than the a p p r o a c h of those circuits that strictly apply Heck even to petitioners who have b e e n released from custody. If a petitioner is unable to obtain habeas relief--at l e a s t where this inability is not due to the petitioner's own lack of diligence--it w o u l d be unjust to place his claim for relief beyond the scope of 1983 where " e x a c t l y the same claim could be redressed if brought by a former prisoner who h a d succeeded in cutting his custody short through habeas." Spencer, 523 U.S. at 2 1 (Souter, J., concurring). W e thus adopt the reasoning of these circuits and hold that a petitioner who h a s no available remedy in habeas, through no lack of diligence on his part, is not -11- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 12 b a r r e d by Heck from pursuing a 1983 claim. The district court therefore erred i n holding that Plaintiff's false imprisonment claim lacked merit where Plaintiff's p r i o r attempt to obtain a favorable termination in habeas was dismissed based on mo o t n e s s . As for the second claim in Plaintiff's amended complaint, this claim was b a s e d on the alleged refusal by a mail clerk to send Plaintiff's legal mail. Plaintiff alleges that, as a result of this refusal, he was unable to file objections to t h e magistrate judge's recommendations in another civil rights case, with the r e s u l t that the magistrate judge's recommendations were adopted by the district c o u r t without de novo review and Plaintiff lost his right to appeal the court's decision. The district court concluded that "[t]he access to the courts claim lacks me r i t because Mr. Cohen fails to allege any actual injury in connection with the p r e p a r a t i o n of an initial pleading raising a nonfrivolous legal claim in a civil r i g h t s action regarding his current confinement or in an application for a writ of h a b e a s corpus." (R. at 164.) For support, the district court cited to Lewis v. C a s e y , 518 U.S. 343, 349-55 (1996). In Lewis, the Supreme Court held that a p r i s o n legal library need only provide those resources "that the inmates need in o r d e r to attack their sentences, directly or collaterally, and in order to challenge t h e conditions of their confinement." Id. at 355. The Court also concluded that t h e denial-of-access-to-the-courts claims brought by illiterate or non-English-12- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 13 s p e a k i n g inmates turned on whether prison officials were ensuring that these i n ma t e s had "a reasonably adequate opportunity to file nonfrivolous legal claims c h a l l e n g i n g their convictions or conditions of confinement." Id. at 356. Thus, in t h e instant case, the district court apparently concluded that any claim of denial of a c c e s s to the courts must be premised on either a habeas petition or on a civil r i g h t s action relating to the conditions of confinement. This reading of Lewis, however, is contrary to our precedent. As we stated i n Simkins v. Bruce, 406 F.3d 1239 (10th Cir. 2005), "[i]n order to provide i n ma t e s a meaningful right of access to the courts, `states are required to provide a f f i r ma t i v e assistance in the preparation of legal papers in cases involving c o n s t i t u t i o n a l rights and other civil rights actions related to their incarceration, b u t in all other types of civil actions, states may not erect barriers that impede the r i g h t of access of incarcerated persons.'" Id. at 1242 (quoting Snyder v. Nolen, 3 8 0 F.3d 279, 290-91 (7th Cir. 2004)). Thus, although Lewis limits the types of c a s e s in which the prison must provide affirmative assistance, it does not give f r e e reign to prison authorities to interfere with and impede a prisoner's pursuit of o t h e r legal actions. Here, Plaintiff alleges that a mail clerk impeded his right of access to the c o u r t s by refusing to send his legal mail, which prevented him from being able to f i l e objections to the magistrate judge's recommendations in another civil action. As reflected in one of the attachments to Plaintiff's amended complaint, the -13- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 14 d i s t r i c t court in that action subsequently dismissed several defendants from the c a s e based on the magistrate judge's recommendation, noting that "Plaintiff has f a i l e d to file specific written objections to the Magistrate Judge's r e c o mme n d a t i o n and is therefore barred from de novo review." (R. at 118.) Moreover, as Plaintiff points out, we "have adopted a `firm waiver rule' that ` p r o v i d e s that the failure to make timely objections to the magistrate's findings or r e c o mme n d a t i o n s waives appellate review of both factual and legal questions.'" United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting M o o r e v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). As in Simkins, the a l l e g e d prejudice from the mail clerk's interference "is directly and inextricably t i e d to the adverse disposition of his underlying case and the loss of his right to a p p e a l from that disposition." 406 F.3d at 1244. Moreover, although Plaintiff's c l a i ms in the underlying case might well be frivolous, the record contains i n s u f f i c i e n t evidence for us to affirm on that basis in this appeal. See id. We thus c o n c l u d e that the district court erred in denying the motion to file an amended c o mp l a i n t and dismissing this claim based on its conclusion that this claim lacked me r i t . For the foregoing reasons, we REVERSE and REMAND the district c o u r t ' s order. In so holding, we express no opinion as to the merit or ultimate d i s p o s i t i o n of Plaintiff's claims. We simply hold, in light of the record on appeal, t h a t the district court erred in denying Plaintiff's motion to file an amended -14- Appellate Case: 09-1563 Document: 01018517479 Date Filed: 10/19/2010 Page: 15 c o mp l a i n t late and dismissing his original and amended complaints for the r e a s o n s given. We GRANT Plaintiff's motion to proceed in forma pauperis on a p p e a l but DENY Plaintiff's request that we order the district court to appoint c o u n s e l to represent Plaintiff on remand. -15-

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