Crowder v. Whalen

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 12, 1998
• Docket: 97-1019
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 12 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

JEROME A. CROWDER,

Plaintiff-Appellant,

v. No. 97-1019 (D.C. No. 95-M-1579) PATRICK E. WHALEN, Warden USP (D. Colo.) Florence, Colorado; TERRY FINNEGAN, USP Florence HSA; ROBERT WILLIAMS, USP Florence Cheif (sic) Chief Medical Officer; KATHLEEN HAWK, Director of Federal Bureau of Prisons; KENNETH MORITSUGU, Assistant Director of Health Service Div., John and Jane Doe 1-25,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. After examining the briefs and 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff Jerome A. Crowder appeals from the district court’s order of

November 26, 1996, adopting the recommendation of the magistrate judge, dated

November 8, 1996. The magistrate judge had recommended that the court 1) deny

Crowder’s motion for default judgment, 2) dismiss two defendants, Kathleen

Hawk and Kenneth Moritsugu in their individual capacities, for lack of personal

jurisdiction, and 3) quash service on the remaining defendants in both their

individual and official capacities, based on various deficiencies in service.

Finally, the magistrate judge recommended that the case “be remanded to the

magistrate judge to facilitate service of process of those defendants over whom

the Court may properly exercise jurisdiction.” Rec. Vol. I, doc. 52 at 11. Our

jurisdiction over this appeal arises from 28 U.S.C. § 1291. 1

1 This court initially questioned its appellate jurisdiction as to the defendants other than Hawk and Moritsugu, issuing a show cause order pursuant to Lewis v. B.F. Goodrich Co. , 850 F.2d 641, 645-46 (10th Cir. 1988) to determine if the district court’s order regarding the remaining defendants was a final decision as required by 28 U.S.C. § 1291. After briefing, the jurisdictional issues were referred to this panel for disposition. Because service was not effective as to the remaining defendants, the district court was not required to enter an order disposing of the claims against them as provided in Rule 54(b). See Bristol v. (continued...)

-2- Crowder also challenges the district court’s orders requiring him to pay a

filing fee on appeal, pursuant to 28 U.S.C. § 1915(b). We review this decision

only for an abuse of its discretion. See Treff v. Galetka , 74 F.3d 191, 197 (10th

Cir. 1996). Following the district court’s initial order granting Crowder leave to

appeal under § 1915 and ordering him to pay an initial partial filing fee, Crowder

filed a motion for reconsideration. He argued that he should be allowed to appeal

without payment of the filing fee because he is handicapped and has no income.

The district court determined that Crowder had shown cause for why he should

not be required to pay an initial partial filing fee, but would not waive the fee

payment requirement entirely. The court said it would not attempt to predict

Crowder’s future financial ability to pay the fee, and concluded that he remained

obligated to pay the filing fee through monthly installments as provided in

§ 1915. Rec. Vol. I, doc. 73 at 2-3. On appeal, Crowder contends that the district

court abused its discretion in this ruling, arguing again that he has no income and

that requiring him to pay the fee bars his right to suit.

1 (...continued) Fibreboard Corp. , 789 F.2d 846, 847 (10th Cir. 1986) (per curiam); see also Insurance Co. of N. Am. v. Dealy , 911 F.2d 1096, 1099 (5th Cir. 1990) ("[U]nserved defendants are not parties for purposes of Rule 54(b) and a judgment does not lack the finality necessary for appeal merely because claims against unserved defendants are unresolved."). Therefore, the district court’s order is final and we have jurisdiction to address all issues presented.

-3- Similarly, this court issued show cause orders after Crowder’s custodian

failed to forward partial payment amounts pursuant to § 1915. Appellees

responded, asserting that Crowder has not authorized his custodian to withdraw

the partial payments from his account. Crowder’s response contends that the

courts may not require him to pay a fee greater than his assets and must allow him

to show that any depletion of his prison account was not deliberate. He repeats

his assertion that he has no income. He asks this court to waive his filing fee, or

allow him to pay only a partial fee.

We agree with the district court that, on this record, Crowder should be

required to pay the fee. Recent amendments to § 1915 clearly require prisoners to

pay filing fees when they bring or appeal a civil action. Further, under those

amendments, the monthly assessment against a prisoner’s account amounts to only

twenty percent of the average monthly balance in that account. Contrary to

Crowder’s arguments, under the provisions of § 1915, he cannot be required to

pay more than he has or more than he will have in the future. Because Crowder’s

suit is proceeding, before both this court and the district court, assessment of the

fees has not and will not constitute a bar to suit or a denial of his access to the

courts. We affirm the district court’s ruling that Crowder will continue to be

obligated to pay the filing fee as required by § 1915.

-4- On appeal, Crowder discusses the merits of his claims. Because those

claims have not yet been decided by the district court, however, we decline to

address them here. See R. Eric Peterson Constr. Co. v. Quintek, Inc. (In re R.

Eric Peterson Constr. Co.) , 951 F.2d 1175, 1182 (10th Cir. 1991). We review

only the decision reached by the district court in its final order.

The district court concluded that it lacked personal jurisdiction over all of

the defendants in their official capacities because the Attorney General was not

served, as required by Fed. R. Civ. P. 4(i)(l). Second, the court concluded that it

lacked personal jurisdiction over two defendants, Kathleen Hawk and Kenneth

Moritsugu, in their individual capacities, and dismissed Crowder’s claims against

them. Third, the court quashed service over the remaining defendants in their

individual capacities because of infirmities in the service effected against them.

Fourth, the court remanded the case to the magistrate judge to effect proper

service against those defendants over whom the court has jurisdiction.

On appeal, Crowder first asserts that the court has personal jurisdiction

over defendants Hawk and Moritsugu in their individual capacities. He alleges

that Ms. Hawk visited the federal prison facility in Florence, Colorado; however,

he does not say why that visit would amount to the minimum contacts needed to

establish in personam jurisdiction against Ms. Hawk in her individual capacity.

See Kuenzle v. HTM Sport-Und Freizeitgerate AG , 102 F.3d 453, 455 (10th Cir.

-5- 1996) (holding personal jurisdiction will lie where a defendant has purposefully

directed activities at residents of the forum and the litigation results from alleged

injuries that arise out of those activities, or where a defendant's contacts are

continuous and systematic) (citing Burger King Corp. v. Rudzewicz , 471 U.S.

462, 472 (1985)). The remainder of Crowder’s allegations deal with actions of

these two defendants in their official capacities. As the district court noted,

“[c]onduct of prison officials located in Colorado and undertaken within the

course and scope of their employment cannot be attributed to Hawk and

Moritsugu in their individual capacities for purposes of establishing minimum

contacts.” Rec. Vol. I, doc. 52, at 10. We agree with the district court that it

lacked personal jurisdiction over defendants Hawk and Moritsugu in their

individual capacities, and that any claims against these defendants in that capacity

were properly dismissed.

Next, Crowder contends that the government waived its right to object to

lack of personal jurisdiction because that defense was not raised in its first

pleading. Our review of the record indicates that the government’s response to

Crowder’s motion for default judgment did include defenses based on both

alleged deficiencies in service against the defendants and a lack of minimum

contacts by defendants Hawk and Moritsugu. Further, we agree with the district

court that the court had an obligation to examine its own jurisdiction over the

-6- parties before considering Crowder’s default motion. See Dennis Garberg &

Assocs., Inc. v. Pack-Tech Int’l Corp. , 115 F.3d 767, 771-72 (10th Cir. 1997).

Crowder next argues that the district court erroneously dismissed his case

for lack of jurisdiction based on the deficiencies in service on defendants. The

district court’s order, however, adopted the magistrate judge’s recommendation,

which was not to dismiss the case for lack of jurisdiction (except as to defendants

Hawk and Moritsugu in their individual capacities), but to remand the case to the

magistrate judge “to facilitate service of process on those defendants over whom

the Court may properly exercise jurisdiction.” Crowder’s claims against

defendants remain, except for those claims Crowder asserted against defendants

Hawk and Moritsugu in their individual capacities. 2

The judgment of the United States District Court for the District of

Colorado is AFFIRMED, and this case is remanded to that court for further

proceedings commensurate with the magistrate judge’s recommendation, adopted

by the district court, including proper service upon the defendants of Crowder’s

amended complaint. Crowder’s motion for injunctive relief is denied as moot.

2 And except for claims asserted pursuant to 28 U.S.C. § 1332, 42 U.S.C. §§ 1983 and 1988, and a claim for improper classification within the prison system. These claims were previously dismissed by the court following a mediation hearing, which ruling Crowder does not challenge on appeal.

-7- Entered for the Court

John C. Porfilio Circuit Judge

-8-