595 F.3d 1120 (10th Cir. 2010), 09-2096, Casanova v. Ulibarri

Docket Nº:09-2096.
Citation:595 F.3d 1120
Opinion Judge:HARTZ, Circuit Judge.
Party Name:Jorge CASANOVA, Plaintiff-Appellant, v. Warden Robert ULIBARRI, Defendant-Appellee.
Attorney:Jorge Casanova, Pro Se. Carlos Elizondo, New Mexico Corrections Department Office of General Counsel, Deputy General Counsel, Santa Fe, NM, for Defendant-Appellee.
Judge Panel:Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ, Circuit Judge.
Case Date:February 09, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
FREE EXCERPT

Page 1120

595 F.3d 1120 (10th Cir. 2010)

Jorge CASANOVA, Plaintiff-Appellant,

v.

Warden Robert ULIBARRI, Defendant-Appellee.

No. 09-2096.

United States Court of Appeals, Tenth Circuit.

February 9, 2010

Page 1121

Submitted on the briefs: [*]

Page 1122

Jorge Casanova, Pro Se.

Carlos Elizondo, New Mexico Corrections Department Office of General Counsel, Deputy General Counsel, Santa Fe, NM, for Defendant-Appellee.

Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ, Circuit Judge.

HARTZ, Circuit Judge.

Jorge Casanova, proceeding pro se here as in the district court, appeals the district court's dismissal of his civil-rights complaint for failure to state a claim upon which relief can be granted. We reverse and remand. The court below improperly assumed (1) that an allegation in the answer to the complaint was true and (2) that undated incidents alleged in the complaint must have preceded the incident for which the complaint alleged a specific date. We grant Mr. Casanova's motion to proceed in forma pauperis.

I. BACKGROUND

On March 18, 2008, Mr. Casanova filed a complaint under 42 U.S.C. § 1983 in the United States District Court for the District of New Mexico, claiming that Warden Robert Ulibarri violated his constitutional rights while he was an inmate at the Central New Mexico Correctional Facility. He alleged, among other things, (1) that Ulibarri was deliberately indifferent to his serious medical needs when the warden directed Mr. Casanova to be placed in segregated confinement without his orthopedic shoes, coat, glasses, medication, dentures, hearing aid, and continuous-positive-air-pressure (CPAP) machine (for severe obstructive sleep apnea); (2) that his physician wrote that without the CPAP machine, he was at risk for " worsening cardiac function, cardiac disease, decreased neurological functioning, daytime fatigue[,] and distress and worsening psychiatric illness," R., Doc. 1 at 10; (3) that as a result of Ulibarri's maltreatment, he was hospitalized for 11 months upon his release from segregation; and (4) that Ulibarri subjected him to cruel and unusual punishment. The complaint provides no dates for any alleged constitutional violation except to allege a " trailer search" on February 3, 2006. Id. at 6.

Ulibarri's answer stated that he did not assume his position as warden at the correctional facility until October 21, 2006, which was after the only date of misconduct alleged in the complaint. In response, Mr. Casanova filed a " Motion to Request" seeking guidance from the district court on how and when to present documentation in support of his claims. Reading Ulibarri's answer as intending to raise a motion to dismiss, the magistrate judge set a briefing schedule, beginning with a deadline of September 22, 2008, for Ulibarri to file a motion to dismiss and supporting brief. Ulibarri timely filed his motion. One proposed ground for dismissal was that the complaint did not state a claim against Ulibarri because he was not the warden at the correctional facility when the alleged constitutional violations occurred. Mr. Casanova's memorandum in opposition is long and discursive but appears to allege that the date when Ulibarri ordered him to segregation without his medical devices was November 6, 2006. After Ulibarri filed a reply, the magistrate judge issued proposed findings and recommended dismissal of the complaint for failure to state a claim because all the misconduct

Page 1123

alleged in the complaint predated Ulibarri's tenure as warden.

Mr. Casanova did not file written objections to the magistrate judge's report and recommendation within the required ten days. On February 18, 2009, the district court adopted the recommendation, dismissing the complaint without prejudice. Six days later Mr. Casanova filed a letter asserting that he had not received the magistrate judge's report and referencing his prior pleadings that supported his claims. On March 30, 2009, he filed a document entitled " Motion," setting forth objections to the magistrate judge's report. He filed a notice of appeal on April 23, 2009.

This court construed Mr. Casanova's February 24 letter as a postjudgment motion and abated the appeal pending the district court's ruling on it. The district court denied the postjudgment motion on May 15, 2009, and this court lifted its abatement order.

On appeal Mr. Casanova contends that the district court erred in dismissing his complaint for failure to state a claim. He points to numerous times that his district-court pleadings allege misconduct on November 6, 2006, which was after Ulibarri became warden at the correctional facility.

II. DISCUSSION

A. Appellate Jurisdiction

We must first decide whether we have jurisdiction to hear this appeal. The order of dismissal was entered on February 18, 2009. Ordinarily, a notice of appeal must be filed within 30 days after judgment is entered. Mr. Casanova, however, did not file his notice of appeal until April 23, 2009, more than 30 days after February 18. Nevertheless, his appeal was timely. If a party files a postjudgment motion within ten days of the final order, the time for filing a notice of appeal is tolled pending resolution of the motion. See Fed. R.App. P. 4(a)(1)(A), 4(a)(4)(A). Mr. Casanova filed a postjudgment motion within ten days of the dismissal order, and the motion was denied on May 15, 2009. Because the notice of appeal predated May 15, we have jurisdiction. See Fed. R.App. P. 4(a)(4)(B)(i) (" If a party files a notice of appeal after the court announces or enters a judgment-but before it disposes of any motion listed in Rule 4(a)(4)(A)-the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered." ).

B. Firm Waiver Rule

A second preliminary issue that we must resolve is whether Mr. Casanova waived appellate review by failing to raise a timely objection to the magistrate judge's...

To continue reading

FREE SIGN UP