Garcia v. Schnurr

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 2, 2020
• Docket: 19-3287
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 2, 2020 _________________________________ Christopher M. Wolpert Clerk of Court IRINEO GARCIA,

Plaintiff - Appellant,

v. No. 19-3287 (D.C. No. 5:19-CV-03108-SAC) DAN SCHNURR; MISTI KROEKER; (D. Kan.) GERALD SHERIDAN; CHRIS SCHNEIDER; MICHAEL LAMB; DAVID GORGES; JEFFREY PETTIJOHN; NATASHA HAYS; APRIL RICHARDS; ANGELA WEST; MACY ROOT; JOE JACKSON; DEB LUNDRY; DON MEAD; CORIZON; DOUGLAS W. BURRIS,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, McHUGH, and EID, Circuit Judges. _________________________________

Irineo Garcia, an inmate in the Hutchinson Correctional Facility in

Hutchinson, Kansas (HCF), appearing pro se, appeals the district court’s order

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. dismissing his 42 U.S.C. § 1983 civil rights action against the above-named HCF

officials and employees, which alleged various violations of his constitutional rights.

Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the order and remand for

further proceedings.

Garcia’s complaint alleged that defendants violated his constitutional rights by

(1) improperly responding to and retaliating against him for filing grievances;

(2) failing to provide access to a shower that complied with the Americans with

Disabilities Act (ADA); and (3) not giving him proper post-surgical medication. He

did not file any supporting documentation with his complaint.

Performing its screening function, the district court ordered Garcia to show

cause why his complaint should not be dismissed for failure to state a claim, see

28 U.S.C. § 1915A(a), (b)(1), and gave him an opportunity to file an amended

complaint curing the pleading deficiencies identified in the order. See Hall v.

Bellmon, 935 F.2d 1106, 1109-10 & n.3 (10th Cir. 1991) (recognizing that before

dismissing a pro se prisoner’s complaint sua sponte, the court should give him an

opportunity to remedy the defects in his pleadings).

At Garcia’s request, the court granted an extension through December 20,

2019, to respond to the show cause order and file an amended complaint, but he did

neither. On December 23, the district court dismissed the complaint for failure to

state a claim under § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii).

On December 28, 2019, Garcia filed what he captioned as an “Appeal of

Judgment,” which the district court understandably docketed as a Notice of Appeal.

2 R. at 52. In substance, however, the Appeal of Judgment was a motion to reconsider

the dismissal order, with an attached amended complaint and supporting

documentation. See R. at 52-101. In it, Garcia explained that he attempted to e-file

his amended complaint on the extended deadline but was unable to do so, and was

resubmitting it. He attached an unsworn “Affidavit of Truth” from an HCF staff

member stating “under penalty of perjury” that he or she “e-filed [Garcia’s]

complaint on December 20, 2019.” R. at 54.

In his brief on appeal, Garcia indicates he “e-filed an amended complaint as

directed by the court with supporting documentation on the extended deadline “but

the system was messed up an[d] no one noticed until after” the district court had

entered the dismissal order. Aplt. Br. at 2. Relying on the local rule providing that a

party whose electronic filing “is made untimely as the result of a technical failure

may seek appropriate relief from the court,” D. Kan. R. 5.4.111, Garcia argues the

district court should have “use[d]” the amended complaint he filed with the Appeal of

Judgment, which he said cured the deficiencies identified in the show cause order.

Garcia’s pro se status entitles him to a liberal reading of his pleadings. See

Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). In substance, his

Appeal of Judgment was a motion to reconsider the dismissal order and an amended

complaint filed in response to the show cause order. Because it is apparent from the

district court docket that the court treated his filing as a notice of appeal instead of as

1 Garcia mistakenly cited D. Kan. Rule CR49.11—the criminal counterpart to Rule 5.4.11—in his brief. 3 a motion to reconsider, we vacate the dismissal order and remand the case to the

district court to rule on the motion to reconsider. In so doing, we express no opinion

about how the district court should rule on the motion and whether the amended

complaint cures the pleading deficiencies identified in the show cause order.

We grant Garcia’s motion to proceed in forma pauperis and remind him of his

obligation under § 1915(b) to make payments until the appellate filing fee is paid in

full.

Entered for the Court

Carolyn B. McHugh Circuit Judge