Butler v. State of Kansas

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 20, 2022
• Docket: 20-3139
• Status: Unpublished

Opinion

Appellate Case: 20-3139 Document: 010110713950 FILED Page: 1 Date Filed: 07/20/2022 United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS July 20, 2022 Christopher M. Wolpert TENTH CIRCUIT Clerk of Court

RICHARD C. BUTLER,

Plaintiff - Appellant,

v. No. 20-3139 (D.C. No. 5:19-CV-03214-SAC) STATE OF KANSAS; SHERRI L. (D. Kan.) BECKER,

Defendants - Appellees.

ORDER AND JUDGMENT *

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.

Mr. Richard Butler, proceeding pro se, 1 appeals the district court’s

dismissal of his § 1983 action for failure to pay the initial partial filing fee. In

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 10th Circuit Rule 32.1. 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is therefore ordered submitted without oral argument. 1 Because Mr. Butler appears pro se, we construe his filings liberally, but do not “assume the role of advocate.” See United States v. Parker, 720 F.3d 781, 784 n.1 (10th Cir. 2013). Appellate Case: 20-3139 Document: 010110713950 Date Filed: 07/20/2022 Page: 2

addition to his appeal, he filed four motions before us, along with an application

to proceed in forma pauperis (“IFP”). Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm the district court’s judgment dismissing Mr. Butler’s action

without prejudice, and, having concluded that Mr. Butler has not presented a

reasoned, nonfrivolous argument in support of his appeal, deny his IFP motion.

We consequently deny as moot Mr. Butler’s four motions.

I

Mr. Butler is currently incarcerated at El Dorado Correctional Facility in

Kansas after being convicted of a variety of offenses, including rape, aggravated

criminal sodomy, aggravated kidnapping, assault, and damage to property.

Underlying this appeal is Mr. Butler’s § 1983 action, which he filed when he was

a Kansas state pretrial detainee. Mr. Butler’s complaint asserts several claims

related to his state criminal prosecution, naming as defendants the State of Kansas

and Ms. Sherri Becker, the state prosecutor. By order dated November 20, 2019,

the district court granted Mr. Butler’s motion to proceed IFP under 28 U.S.C.

§ 1915(a)(1). Notwithstanding his IFP status, Mr. Butler ultimately was

responsible for paying the full filing fee, and he was obliged to pay an initial

partial filing fee. See 28 U.S.C. § 1915(b)(1). In that regard, the district court,

relying on § 1915(b)(1), assessed an initial partial filing fee of $15.00 and

notified Mr. Butler that failure to pay the initial partial filing fee within 14 days

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may result in the dismissal of his case without further notice. The district court’s

order also informed Mr. Butler of his continuing obligation to pay, through

monthly installments, the remainder of the filing fee, pursuant to § 1915(b)(2).

On December 2, 2019, Mr. Butler requested an extension of time to pay the

initial $15.00 filing fee. However, even four months after his extension request,

Mr. Butler had not paid the initial filing fee. Consequently, on April 28, 2020,

the district court dismissed his § 1983 action without prejudice. That same day,

the court entered its judgment by separate order.

On July 10, 2020, more than 30 days after the district court’s dismissal and

entry of its judgment, Mr. Butler filed his pro se notice of appeal. Notably, in a

civil case in which the United States is not a party, a notice of appeal must be

filed within 30 days following entry of the judgment. See 28 U.S.C. § 2107(a);

F ED . R. A PP . P. 4(a)(1)(A). Along with his notice of appeal, Mr. Butler filed a

self-styled “Motion to Object to Judgment in a Civil Case of Dismiss[al],”

objecting to the district court’s judgment and explaining that he had just received

notice of the judgment. R. at 34 (Pet.’s Mot. to Object to J., dated Jul. 10, 2020).

Soon after this initial motion, Mr. Butler filed, on separate dates, two additional

motions addressing his appeal’s untimeliness—a July 17 motion objecting to the

district court’s order and an August 31 motion requesting an extension of time to

file his appeal. Specifically, he asserted in both motions that, due to

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circumstances related to his confinement at Atchison County Jail, he had not

received notice of the dismissal until July 2, 2020. Moreover, he asserted in his

July 17 motion that he would have paid the initial $15.00 filing fee had he

received his mail.

Appellate courts do not have discretion to allow an untimely appeal to

proceed; timely filing of a notice of appeal in a civil case is both mandatory and

jurisdictional. See Bowles v. Russell, 551 U.S. 205, 214 (2007). However, the

district court may reopen the time to file an appeal of a judgment or order when a

party has not received notice of the entry of the judgment or order, if “the motion

is filed within 180 days after the judgment or order is entered or within 14 days

after the moving party receives notice under Federal Rule of Civil Procedure

77(d) of the entry, whichever is earlier.” F ED . R. A PP . P. 4(a)(6)(B).

Accordingly, on October 8, 2020, because the district court had not yet considered

whether Mr. Butler’s July 17 or August 31 motions should be construed as a

motion to reopen the time to file an appeal under Rule 4(a)(6), and, if so, whether

such relief was warranted, a panel of our Court abated the appeal and remanded

the matter to the district court for its consideration of the motions under Rule

4(a)(6). 2 Moreover, the panel directed Mr. Butler—upon the district court’s

2 The panel’s order did not address Mr. Butler’s initial July 10 motion objecting to the district court’s judgment.

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consideration and action on the motions—to immediately file written notice with

this Court and attach a copy of the district court’s decision to the notice. After

the panel’s order was filed, but prior to the district court’s consideration of the

specified motions, Mr. Butler filed an October 14 motion requesting the district

court reopen his case.

On October 22, 2020, the district court considered whether any of Mr.

Butler’s four post-dismissal motions should be construed as a motion to reopen

the time to file an appeal under Rule 4(a)(6). First, in addressing Mr. Butler’s

July 17 motion, the district court rejected Mr. Butler’s assertion that he would

have paid his initial partial filing fee had he received his mail, noting that “[he]

clearly received the order and was aware of the fee assessment because he filed a

motion for an extension of time to pay . . . on December 2, 2019.” R. at 83 (Dist.

Ct.’s Order Considering Pet.’s Post–Dismissal Mots., dated Oct. 22, 2020).

The court also stressed the nearly five-month period of nonpayment

between Mr. Butler’s December 2 motion and its dismissal of his action.

Accordingly, the district court refused to construe Mr. Butler’s July 17 motion as

a motion to reopen the time to file an appeal, and to the extent that motion could

be construed as seeking relief from judgment under Federal Rule of Civil

Procedure 60(b), the court denied the motion. See id. at 82–83. Next, addressing

Mr. Butler’s August 31 and October 14 motions in tandem, the court noted that

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neither was filed within fourteen days of Mr. Butler’s receipt of notice, nor did

either ask the court to reopen the time to appeal. Id. at 84. The district court thus

declined to construe either motion as a motion to reopen the time to file an

appeal. Id.

However, as to Mr. Butler’s July 10 motion (which the court noted was

previously “docketed as an objection”), upon consideration of Mr. Butler’s pro se

status and a finding that no party would be prejudiced by reopening the time to

appeal, the district court construed that filing as a motion to reopen the time to

file an appeal under Rule 4(a)(6). Id. at 84–85. To that end, the court noted that

Mr. Butler’s July 10 motion asked the court to allow his appeal to proceed despite

its untimeliness and was filed within fourteen days of his receipt of notice of the

judgment. Id. at 85.

The district court’s order also granted Mr. Butler’s motion for leave to

proceed IFP on appeal, noting that Mr. Butler “was granted leave to proceed [IFP]

at the commencement of the action.” Id. But because the district court’s order

did not assess partial payments as required by 28 U.S.C. § 1915(b)(1), our Clerk

of Court required Butler to file a renewed application to proceed without

prepayment of fees. That motion—along with a few others—is pending before us

in this appeal.

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Specifically, during the pendency of this appeal, Mr. Butler wrote to the

Court four times, filing his self-captioned “Motion [to] Admit [ ] Evidence [1],”

“Motion to Admit Evidence [2],” “Motion Letter of Postponeing [sic],” and

“Motion [for] Abeyance (Letter).” The two motions to admit evidence together

contain Mr. Butler’s request to admit evidence concerning the merits of his §

1983 action. Mr. Butler’s motion to postpone and motion for abeyance together

contain a request “to postpone any filed motions, due to the fact of furthering

helping [sic] [him] prove [his] innocence and to exploit the injustice of the

Atchison County Kansas Justice system, all to help furthering [his] defense and to

bring more light to [his] case to exalt my appeal process.” Mot. to Postpone at 1,

filed Jan. 25, 2021; see also Mot. for Abeyance at 1, filed Feb. 1, 2021 (“I write

to ask can I ABEYANCE [sic] my case?”). In any event, Mr. Butler explicitly

states that he “allow[s] the [Court] to keep taking my filing fee from my prison

account every month . . . . until the filing fees are paid in full.” Mot. to Postpone

at 1–2. These four motions, along with his motion to proceed IFP, are all before

us now.

II

Federal Rule of Civil Procedure 41(b) provides that district courts may

dismiss an action where a plaintiff fails “to comply with [the Federal Rules of

Civil Procedure] or a court order.” F ED . R. C IV . P. 41(b); see also Cosby v.

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Meadors, 351 F.3d 1324, 1327 (10th Cir. 2003) (“If a prisoner has the means to

pay, failure to pay the filing fee required by § 1915(b) may result in the dismissal

of a prisoner’s civil action.”). We review a district court’s dismissal of a claim

for failure to comply with a court order to pay a filing fee for abuse of discretion.

Cosby, 351 F.3d at 1326. “An abuse of discretion will be found only where the

trial court makes ‘an arbitrary, capricious, whimsical, or manifestly unreasonable

judgment.’” FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir. 1994) (quoting

United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir. 1991)). More

specifically, “[w]hen dismissing a case [under Rule 41(b)] without prejudice, ‘a

district court may, without abusing its discretion, enter such an order without

attention to any particular procedures.’” AdvantEdge Bus. Grp. v. Thomas E.

Mestmaker & Assocs. Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (quoting

Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162 (10th Cir. 2007)).

“[W]hen we have upheld dismissals . . . for a prisoner’s failure to pay fees,

the district court has generally conducted the inquiry necessary to determine that

the failure is attributable to the prisoner’s negligence or misconduct rather than

circumstances beyond his control.” Sandoval v. New Mexico, 576 F. App’x 784,

787 (10th Cir. 2014) (unpublished); cf. Hill v. Fort Leavenworth Disciplinary

Barracks, 660 F. App’x 623, 625 (10th Cir. 2016) (unpublished) (upholding

dismissal where, “[d]espite warnings from the district court, [the plaintiff] failed

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to pay the statutorily mandated filing fee and failed to otherwise establish his

inability to pay”); Kouris v. Gurley, 272 F. App’x 724, 726 (10th Cir. 2008)

(unpublished) (upholding dismissal where the plaintiff claimed prison officials

had refused to process his payments for a certain period of time but the court did

not receive a payment even after that period had expired); Baker v. Suthers, 9 F.

App’x 947, 950 (10th Cir. 2001) (unpublished) (upholding dismissal where

plaintiff had spent the required funds at the prison commissary).

III

A

On appeal, Mr. Butler must “explain what was wrong with the reasoning

that the district court relied on in reaching its decision.” Nixon v. City & Cnty. of

Denver, 784 F.3d 1364, 1366 (10th Cir. 2015). But he wholly fails to explain

why the district court’s dismissal was error—i.e., why the court should not have

dismissed the action due to Mr. Butler’s failure to pay the partial filing fee. In

his opening brief, Mr. Butler does not mention let alone meaningfully discuss his

failure to pay the partial filing fee. See Aplt.’s Opening Br. at 1–17. Instead, he

homes in on the merits of his § 1983 action. But the merits were not the basis of

the district court’s dismissal without prejudice, and are not at issue here.

Mr. Butler’s “failure to explain why the district court’s order was wrong

waives any argument for reversal.” Dease v. Webb, 791 F. App’x 744, 746 (10th

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Cir. 2019) (unpublished) (citing Utah Env’t Cong. v. Bosworth, 439 F.3d 1184,

1194 n.2 (10th Cir. 2006)); see Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th

Cir. 1995) (“Because the appellant comes to the court of appeals as the

challenger, he bears the burden of demonstrating the alleged error and the precise

relief sought. A court of appeals is not required to manufacture an appellant’s

‘argument on appeal when it has failed in its burden to draw our attention to the

error below.’” (citations omitted) (quoting Nat’l Commodity & Barter Ass’n v.

Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989))). Indeed, it is well-established that

we have the discretion to deem any challenge under these circumstances to a

district court’s order waived. See, e.g., Bronson v. Swensen, 500 F.3d 1099, 1104

(10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are

not raised, or are inadequately presented, in an appellant’s opening brief.”).

This principle applies equally to pro se appellants. See, e.g., Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“Although

‘[a] pro se litigant’s pleadings are to be construed liberally and held to a less

stringent standard than formal pleadings drafted by lawyers,’. . . ‘[t]his court has

repeatedly insisted that pro se parties follow the same rules of procedure that

govern other litigants.’” (first quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th

Cir. 1991); and then quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.

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1994))); cf. United States v. Banks, 884 F.3d 998, 1024 (10th Cir. 2018) (“We

aren’t required to fill in the blanks of a litigant’s inadequate brief.”).

Thus, we conclude that Mr. Butler’s challenge as to the district court’s

dismissal of his § 1983 action for failure to pay a partial filing fee is

“insufficiently raised” and therefore waived. Becker v. Kroll, 494 F.3d 904, 913

n.6 (10th Cir. 2007); see Garrett, 425 F.3d at 840 (“[Pro se] Plaintiff’s briefs are

wholly inadequate to preserve issues for review. . . . [T]he court cannot take on

the responsibility of serving as the litigant’s attorney in constructing arguments

and searching the record.” (citations omitted)); see also Reedy v. Werholtz, 660

F.3d 1270, 1275 (10th Cir. 2011) (“Nowhere do Plaintiffs state the standards

applicable to the grant of injunctive relief and explain why the facts and the law

support that remedy in this case. Issues not adequately briefed will not be

considered on appeal.”).

B

Mr. Butler’s motion to proceed IFP also is before us. The federal IFP

statute authorizes courts to permit an IFP action without full prepayment of fees;

it requires the prisoner instead to pay only an initial partial filing fee and monthly

payments towards satisfaction of the full filing fee. See 28 U.S.C. § 1915(a)–(b).

“In order to succeed on his [IFP] motion, an appellant must show a financial

inability to pay the required filing fees and the existence of a reasoned,

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nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Mr.

Butler cannot satisfy this standard: he fails to present a nonfrivolous argument

here. In particular, as we have discussed, Mr. Butler utterly fails to engage with

the district court’s reason for dismissing his § 1983 action. Accordingly, we deny

Mr. Butler’s motion to proceed IFP.

IV

For the foregoing reasons, we AFFIRM the district court’s judgment

dismissing Mr. Butler’s action without prejudice, and, having concluded that Mr.

Butler has not presented a reasoned, nonfrivolous argument in support of his

appeal, DENY his IFP motion and ORDER immediate payment of the unpaid

balance due. Based on this disposition, we DENY AS MOOT Mr. Butler’s four

motions. 3

ENTERED FOR THE COURT

Jerome A. Holmes Circuit Judge

3 Recall that those motions were the following: Mr. Butler’s self-captioned Motion to Admit Evidence [1], Motion to Admit Evidence [2], Motion to Postpone, and Motion for Abeyance.