Casper v. Disalvo

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 15, 2024
• Docket: 23-1229
• Status: Unpublished

Opinion

Appellate Case: 23-1229 Document: 010111001224 Date Filed: 02/15/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 15, 2024 _________________________________ Christopher M. Wolpert Clerk of Court JEREMIAH CASPER,

Plaintiff - Appellant,

v. No. 23-1229 (D.C. No. 1:23-CV-00508-LTB) JOE DISALVO; KIM VALLARIO; BRAD (D. Colo.) GIBSON; LEVI BORST; SARA ROUSH; JAIRO GARCIA; ZANE CISNEROS; MARTIN GONZALEZ,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BRISCOE, and EID, Circuit Judges. _________________________________

Jeremiah Casper, a Colorado state prisoner appearing pro se, filed a lengthy,

handwritten civil rights complaint asserting approximately twenty-four claims against

various individuals employed by the Pitkin County (Colorado) Sheriff’s Office. The

magistrate judge ordered Casper to refile his complaint using a court-approved

prisoner complaint form. Casper responded by filing an amended complaint on a

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-1229 Document: 010111001224 Date Filed: 02/15/2024 Page: 2

court-approved prisoner complaint form. Notably, however, Casper failed to

substantially complete the form. Both the magistrate judge and the district court

directed Casper to utilize and complete a court-approved prisoner complaint form and

to attach additional pages as needed to complete the sections of the approved form.

Casper filed a second amended complaint. Although the first portion of the second

amended complaint included a court-approved prisoner complaint form, Casper again

failed to substantially complete the form and instead attached to the form a

handwritten complaint that was similar to his original complaint. The district court

responded by dismissing the case without prejudice due to Casper’s failure to comply

with the court’s orders.

Casper now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm the judgment of the district court and deny Casper’s motion for leave to

proceed in forma pauperis on appeal.

I

On February 24, 2023, Casper initiated these federal proceedings by filing

three pro se pleadings: a seventy-page civil rights complaint, a motion to proceed in

forma pauperis pursuant to 28 U.S.C. § 1915, and a motion for appointment of

counsel. All three pleadings were handwritten by Casper on blank sheets of paper.

The cover sheet of the complaint stated: “Civil Rights Complaint Filed under

42 U.S.C. § 1983” and “Pattern of Constitutional Deprivation(s) Suffered from

Pitkin, Colorado Sheriff’s Department.” ROA at 5. The complaint alleged, in

relevant part, that Casper was incarcerated at a Colorado state correctional facility in

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Sterling, Colorado, but had previously been confined at the Pitkin County (Colorado)

Jail. The complaint named as defendants “Sheriff Joe DiSalvo,” “Commander Kim

Vallario,” two “[a]rresting sheriff deputies: Brad Gibson” and “Levi Borst,” and four

“[j]ail based deputies: Sara Roush, Jairo Garcia, Zane Cisneros, [and] Martin

Gonzalez.” Id. at 7. The body of the complaint alleged twenty-four separate civil

rights claims against the named defendants and purported to outline “supporting case

law” for each of the claims. Id. at 31.

On February 28, 2023, the magistrate judge assigned to the case issued an

order directing Casper to cure certain deficiencies in his § 1915 motion and in his

complaint. The order noted that Casper’s § 1915 motion was not on a court-approved

form and was missing a “certified copy of [Casper’s] trust fund statement for the

6-month period immediately preceding th[e] filing” and “authorization to calculation

and disburse filing fee payments.” ECF No. 5 at 2. The order in turn noted that

Casper’s complaint was “not on [a] proper form” and that Casper was required to

“use [the] current court-approved Prisoner Complaint form.” Id. The order directed

Casper to “cure” the identified deficiencies “within 30 days.” Id. at 3.

On March 9, 2023, Casper filed an amended complaint on a six-page,

court-approved prisoner complaint form. On the first page of the form, which

included spaces for identifying the “Plaintiff” and the “Defendant(s),” Casper

handwrote his name and the names of the defendants. ROA at 81. On the second and

third pages of the form, which asked him to provide detailed information about each

defendant, Casper handwrote a single sentence: “See attached complaint for all (8)

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defendants.” Id. at 82. Similarly, on the fourth page of the form, which asked him to

“[s]tate clearly and concisely every claim that you are asserting in this action,”

Casper handwrote the following: “See attached complaint for numerous claim(s),

defendant participation, damages, & supporting case law.” Id. at 84. And on the

sixth page of the form, which asked him to “[s]tate the relief you are requesting or

what you want the court to do,” Casper handwrote the following: “See complaint

damages & participation for all claim(s) suffered.” Id. at 86. Notwithstanding

Casper’s repeated references to an “attached complaint,” however, there were no

documents attached to or otherwise submitted with the prisoner complaint form.

Along with the amended complaint, Casper also filed on March 9, 2023, a new

motion to proceed in forma pauperis pursuant to § 1915 and statements in support of

that motion.

On April 7, 2023, the magistrate judge issued a second order directing Casper

to cure deficiencies in his new § 1915 motion and his amended complaint. The order

noted that Casper’s new § 1915 motion was “missing [a] certified copy of [Casper’s]

trust fund statement for the 6-month period immediately preceding th[e] filing.” Id.

at 98. As for Casper’s amended complaint, the order noted:

Plaintiff must submit a complete prisoner complaint on the court-approved form. The Court will not piece together separate filings and/or supplements. Instead, a complete prisoner complaint, along with all of the pages, claims, factual allegations, request for relief, and information must be submitted in one complete document on the court-approved form.

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Id. at 99. The order directed Casper to cure these deficiencies within thirty days of

the date of the order. The order also advised Casper that if he failed to cure the

deficiencies within thirty days of the date of the order, “the action w[ould] be

dismissed without further notice.” Id. at 100.

On April 24, 2023, Casper filed a handwritten motion titled “Combined motion

to set aside/modify magistrate 4/7/23 ‘Second order directing plaintiff to cure

deficiencies,’ per CRCP 60(b)(5) due to unconstitutional directives; and petition to

exceed page limitations for complaint introduction.” Id. at 101. The motion asked

“the court to modify its most current order with respect to the overly restrictive space

limitations of the ‘court approved complaint form.’” Id. Casper asserted in support

that “the ‘court approved’ form d[id] not have adequate space to introduce [his]

singular complaint composed of 26 seperate [sic] claim(s)” and that “[a]dditional

space . . . [wa]s needed.” Id. at 102. Casper also argued that “the legal strategy of

the extensive initial filing of the case [wa]s deliberate to the extent the effort ‘m[ight]

serve’ to support ‘potential’ settlement avenues.” Id. at 103. Ultimately, Casper

argued that requiring him to use a court-approved complaint form was “both

unreasonable and unconstitutional.” Id. at 107. Casper therefore asked the district

court to “accept [his] complaint and all supporting documents” that had previously

been filed. Id. at 110.

On May 17, 2023, the district court issued an order denying Casper’s

combined motion “as to the request that he not be required to use the court-approved

Prisoner complaint form,” but “grant[ing] in part as to his request to exceed page

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limitations.” Id. at 116. The district court explained that “[a]s to the requirement

that [Casper] submit his Prisoner Complaint on the court-approved form, a pro se

party must follow the same procedural rules that govern other litigants.” Id. The

district court in turn noted that its local rules “require[d] pro se litigants, both

prisoners and nonprisoners, to use the Court-approved forms found on the Court’s

website.” Id. The district court also noted that the “Tenth Circuit ha[d] repeatedly

upheld the requirement that pro se litigants comply with local rules requiring use of

proper court-approved forms, and ha[d] rejected constitutional challenges to such

rules.” Id. at 116–17 (citing several unpublished Tenth Circuit cases). As for

Casper’s “request to exceed page limitations,” the district court granted that request

“in part” and ordered that Casper’s “Amended Prisoner Complaint may be up to 45

(forty-five) pages.” Id. at 117. The district court advised Casper, however, “that he

must use the court-approved prisoner complaint form and not include additional

sections that [we]re not part of the court-approved form.” Id. at 117–18. The district

court noted, for example, that “[h]is pleading d[id] not need to have an ‘introduction’

section or a ‘caselaw’ section.” Id. at 118. The district court afforded Casper thirty

days to file an amended complaint that complied with the court’s directives and noted

that if he “fail[ed] to cure the deficiencies as directed within the time allowed, the

action w[ould] be dismissed without further notice.” Id. at 119.

On May 24, 2023, Casper filed a second amended complaint. The first six

pages of the second amended complaint included a court-approved prisoner

complaint form. But the form was, for the most part, incomplete. Casper listed

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himself as the plaintiff and provided his address. But he did not list any of the

defendants and instead referred to attachments that he submitted with the form.

Similarly, in the “STATEMENT OF CLAIM(S)” and “REQUEST FOR RELIEF”

sections of the form, Casper referred to an attachment he submitted with the form.

Id. at 129, 131. Notably, that attachment was a handwritten complaint detailing his

claims against the named defendants.

On June 28, 2023, the district court issued an order of dismissal. The district

court concluded in the order that Casper “ha[d] failed to follow Court Orders and

failed to cure the deficiencies as directed by the Court.” Id. at 153. In particular, the

district court concluded that Casper “attempted to circumvent the requirement of

using the court-approved form by simply saying ‘see attached’ and then attaching his

own documents, which [we]re a separate format from the court-approved form and

include[d] ‘indexes’ of claims.” Id. The district court noted that it had “specifically

informed [Casper] that it would not piece together separate filings and/or

supplements,” and had “also previously warned [him] that ‘dismissal [wa]s an

appropriate disposition against a party who disregard[ed] court orders and fail[ed] to

proceed as required by court rules.’” Id. (quoting ECF No. 13 at 6). The district

court therefore ordered the action “dismissed without prejudice for failure to cure the

deficiencies and failure to follow court orders.” Id. at 154. The district court also

“certifie[d] pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from [its] order would

not be taken in good faith and therefore in forma pauperis status w[ould] be denied

for the purpose of appeal.” Id.

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Final judgment was entered on June 28, 2023. Casper thereafter filed a timely

notice of appeal. Casper has since filed with this court a motion for leave to proceed

in forma pauperis on appeal.

II

Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss an

action “[i]f the plaintiff fails to . . . comply with . . . a court order.” Fed. R. Civ. P.

41(b); see Link v. Wabash R. Co., 370 U.S. 626, 630–32 (1962) (holding that a

district court has inherent power to sua sponte dismiss a case pursuant to Rule 41(b)).

We review such a dismissal for an abuse of discretion. See Nasious v. Two Unknown

B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). If the dismissal is with

prejudice, a district court “must first consider certain criteria.” Id. at 1162. But

where, as here, the dismissal was without prejudice, the “district court may, without

abusing its discretion, enter such an order without attention to any particular

procedures.” Id.

After reviewing the record on appeal in this case, we conclude that the district

court did not abuse its discretion in dismissing Casper’s second amended complaint

without prejudice pursuant to Rule 41(b). When the district court denied Casper’s

combined motion to set aside/modify the magistrate judge’s April 27, 2023 order

directing him to cure deficiencies in his first amended complaint, the district court

specifically advised Casper that the district court’s local rules “require[d] pro se

litigants . . . to use the Court-approved forms found on the [district] [c]ourt’s

website.” ROA at 116 (citing D.C. Colo. L. Civ. R. 5.1(c)). The local rule cited by

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the district court, titled “Formatting and Filing of Pleadings and Documents and

Maintenance of Contact Information by an Unrepresented Prisoner or Party,” states,

in relevant part, that “an unrepresented prisoner or party shall use the procedures,

forms, and instructions posted on the court’s website” and that “[i]f the unrepresented

party is a prisoner and is unable to access the website, on request the clerk shall

provide copies of necessary procedures, forms, and instructions.” D.C. Colo. L. Civ.

R. 5.1(c). Casper does not dispute the existence of this rule or its applicability to his

situation. Nor does he offer any reasoned argument that would persuade us that the

rule should not be applied in his case. Although Casper argues in favor of the format

he selected for his original and two amended complaints, our review of those

pleadings persuades us that the presumed underlying purpose of the local rule, to

require the use of court-approved forms in order to help organize and streamline pro

se pleadings and, in turn, to facilitate the district court’s efficient review of those

pleadings, is certainly applicable here. Because Casper refused to comply with the

local rule and file an amended complaint that properly utilized the court-approved

form, the district court acted well within its discretion in dismissing the action

without prejudice.

Lastly, we reject Casper’s argument that requiring him to use the court-

approved prisoner complaint form violates his constitutional rights by limiting the

amount of space he has to detail his allegations against the named defendants. As the

district court effectively noted in its orders, and as the court-approved prisoner

complaint form itself notes, a prisoner such as Casper may, after completing each

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section of the court-approved prisoner complaint form, attach additional pages if they

believe those pages are necessary to provide more detailed responses to any of the

questions posed in the form. Thus, requiring Casper to use the court-approved

prisoner complaint form does not in any way hamper his ability to pursue his claims

against the named defendants. See Young v. United States, 316 F. App’x 764, 771

(10th Cir. 2009) (rejecting pro se litigant’s “constitutional and other challenges to the

District of Colorado’s local rule requiring use of the form by all prisoner litigants”).

III

The judgment of the district court is AFFIRMED. Casper’s motion to proceed

in forma pauperis on appeal and his request for record on appeal are DENIED.

Entered for the Court

Mary Beck Briscoe Circuit Judge