Cohen v. Longshore

• Decision Date: 19 October 2010
• Docket Number: No. 09-1563.,09-1563.
• Citation: 621 F.3d 1311
• Parties: Solomon Ben-Tov COHEN, Plaintiff-Appellant, v. John P. LONGSHORE; Unknown Mail Clerk, El Paso County Sheriff's Office, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

621 F.3d 1311

Solomon Ben-Tov COHEN, Plaintiff-Appellant,

v.John P. LONGSHORE; Unknown Mail Clerk, El Paso County Sheriff's Office, Defendants-Appellees.

No. 09-1563.

United States Court of Appeals,Tenth Circuit.

Oct. 19, 2010.

Submitted on the briefs: ^*

Solomon Ben-Tov Cohen, pro se.

Before KELLY, McKAY, and LUCERO, Circuit Judges.

McKAY, Circuit Judge.

Plaintiff Solomon Cohen, proceeding pro se, appeals from the district court's sua sponte dismissal of his civil rights complaint and denial of his motion to file an amended complaint late. Plaintiff, who was an immigration detainee at the time the underlying proceedings took place, sought in his amended complaint to raise claims of false imprisonment and denial of access to the courts. The district court denied Plaintiff's motion to amend on three grounds: (1) untimeliness, (2) his attachment of different exhibits to the three copies of his amended complaint, and (3) the futility of amendment. The court then dismissed both the original and amended complaints. On appeal, Plaintiff contends that he should have been permitted to file his amended complaint and that the claims in the amended complaint were sufficiently meritorious that they should have been allowed to proceed.

We review for abuse of discretion the district court's denial of Plaintiff's motion to file an amended complaint. See United States ex rel. Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir.2009). Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that leave to amend should be freely given “when justice so requires,” and thus “district courts may withhold leave to amend only for reasons such as ‘undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment.’ ” Id. (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (brackets omitted)).

Plaintiff filed his initial complaint on May 22, 2009, and his first amended complaint on June 23, 2009. On June 25, the magistrate judge issued an order directing Plaintiff to file a second amended complaint. Plaintiff sought an extension of time to file his complaint on July 31, September 2, and October 28. Each motion for an extension of time was granted, but the magistrate judge warned him on the last occasion that no further extensions would be granted and that he had only until November 30 to file his second amended complaint as directed. In his September and October motions for an extension of time, Plaintiff explained why he was requesting an extension, with his reasons including medical issues, his transfer to another facility, and the limitations of the detention center's law library. When he finally filed his second amended complaint, along with a motion for late filing, on December 10, 2009, he explained that his cancer symptoms had recurred and that he had been feeling very weak during the past six weeks, which had prevented him from complying with the deadline for filing his amended complaint.

As the Supreme Court stated in Foman, “undue delay” may be an appropriate justification for denying a motion to amend. 371 U.S. at 182, 83 S.Ct. 227. In deciding whether a delay is “undue,” we “focus[ ] primarily on the reasons for the delay.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir.2006). “We have held that denial of leave to amend is appropriate ‘when the party filing the motion has no adequate explanation for the delay.’ ” Id. (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-66 (10th Cir.1993)). For instance, in Woolsey v. Marion Labs., Inc., 934 F.2d 1452 (10th Cir.1991), we affirmed the district court's denial of a motion to amend that was filed nearly seventeen months after the filing of the original complaint with no explanation for the delay. Id. at 1462. In Smith v. Aztec Well Servicing Co., 462 F.3d 1274 (10th Cir.2006), we affirmed the district court's denial of leave to amend where “[t]he plaintiffs offer[ed] no explanation for their 14-month delay other than the dubious assertion that until the district court's ruling at the pre-trial conference, they had no idea an amendment was necessary.” Id. at 1285 (internal quotation marks and brackets omitted). By contrast, we concluded in Minter that the district court erred in striking as untimely an amended claim when the plaintiff gave “an excusable cause for the delay” in bringing this claim. 451 F.3d at 1207.

[3] In this case, Plaintiff asserted that he filed his amended complaint late-ten days following the deadline given by the magistrate judge-because of a serious medical condition. Plaintiff had also provided reasons for his previous extensions of time, many of which were likewise outside of his control. The district court gave no consideration to these reasons, but simply held that the motion for late filing should be denied because Plaintiff had failed to file it in a timely fashion. We conclude that the district court abused its discretion when it denied the motion to file an amended complaint without any consideration of whether Plaintiff had given an excusable cause for his delay in amending the complaint as directed. In so holding, we express no opinion as to whether Plaintiff's explanations did in fact provide sufficient cause for his delay in complying with the order to file an amended complaint. We simply hold that the district court erred when it failed to give any consideration to the adequacy of the reasons Plaintiff provided for the delay.

The district court's second reason for its decision was Plaintiff's attachment of different exhibits to each copy of the second amended complaint. The court thus reasoned that Plaintiff had “failed to file a second amended complaint as directed.” (R. at 163.) However, although dismissal may be “an appropriate disposition against a party who disregards court orders and fails to proceed as required by court rules,” United States ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th Cir.2005), we are not persuaded that a pro se plaintiff's apparently inadvertent failure to attach identical exhibits to each copy of his amended complaint is a sufficiently grievous departure from the court's rules to warrant denying his motion to amend and dismissing his complaint.

Moreover, we note that the district court did not indicate in its order whether it was dismissing Plaintiff's complaint with or without prejudice, and thus the court's dismissal must be treated as a dismissal with prejudice. See Nasious v. Two Unknown BICE Agents, 492 F.3d 1158, 1162 (10th Cir.2007). Although a district court has the discretion to dismiss a case with prejudice for the failure to comply with the rules of civil procedure or the court's orders, the court does not exercise its discretion soundly unless it first considers certain criteria-specifically, “ ‘(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.’ ” Id. (quoting Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir.2003)). In this case, there is no indication that the district court considered any of these factors before dismissing both the original and the amended complaint. Furthermore, as in Nasious, these factors do not all weigh in favor of dismissal, and we see no basis for affirming the court's decision based on our own independent assessment of these criteria on appeal. See id. at 1162-63.

Finally, the district court concluded that Plaintiff's motion to file a late amended complaint should be denied because the claims he sought to add lacked merit. Although we generally review for abuse of discretion a district court's denial of leave to amend a complaint, when this “denial is based on a determination that amendment would be futile, our review for abuse of discretion includes de novo review of the legal basis for the finding of futility.” Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1250 (10th Cir.2009). We thus consider de novo whether “it is ‘patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). We likewise review de novo a district court's conclusion that a complaint should be dismissed because it fails to state a claim upon which relief may be granted. See Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir.1995).

In his amended complaint, Plaintiff sought to raise two claims: false imprisonment and denial of access to the courts. As for the false imprisonment claim, the district court concluded that this claim lacked merit because Plaintiff had not invalidated his imprisonment and thus could not recover damages under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which generally prohibits an individual from recovering damages in a civil rights action for an allegedly unlawful confinement where there has not been a favorable termination of the criminal action on appeal or in a collateral action. Plaintiff argues, however, that Heck should not bar this action because Plaintiff has no available habeas remedy. Indeed, Plaintiff in fact sought to invalidate his imprisonment through a 28 U.S.C. § 2241 petition but was prevented by his transfer out of Immigration and Customs Enforcement custody, which mooted his habeas claims. See Cohen Ma v. Hunt, 372 Fed.Appx. 850 (10th Cir.2010). Under these circumstances, Plaintiff argues, his false imprisonment claim should not be barred by his failure to obtain relief in habeas.

The circuits have split on the question of whether...