On November 29, 2011, the Tenth Circuit Court of Appeals vacated a district court's order denying the Rule 60(b) motion of a prisoner who had suffered serious medical complications and not timely received a court order to amend his complaint.
Douglas Burns, a Colorado state prisoner, filed a civil rights action pursuant to 42 U.S.C. § 1983. The district court ordered Burns to pay an initial filing fee which he did. However, a court clerk failed to record the payment. A magistrate judge ordered Burns to amend his complaint and, when he failed to do so, dismissed the complaint for failure to pay the filing fee or amend the complaint.
Burns filed a Rule 60(b) motion requesting additional time to file his amended complaint and/or relief from the judgment. In the motion, Burns explained that had a medical condition which had caused him to receive seventeen emergency medical transfers between infirmaries and hospitals and three surgeries during a period of five months. As a result, he was incapacitated, had been separated from his legal materials for months and did not receive the order to amend the complaint until two months after the complaint had been dismissed. He also explained that he had paid the filing fee.
The court signed an order denying all pending motions as moot because the case had been dismissed. Burns wrote the court asking why it had not properly ruled on his Rule 60(b) motion. Burns later wrote the court clerk asking for forms to file an appeal. The district clerk construed the letter as a notice of appeal.
A day after the appeal was docketed, the court issued an order revisiting its previous order denying the Rule 60(b) motion. The new order acknowledged that Burns had paid the initial filing fee and vacated that part of its previous dismissal order. It also considered the Rule 60(b) motion, but denied it stating that Burns had not shown any extraordinary circumstances warranting relief from the judgment. Burns filed a notice of appeal.
The Tenth Circuit consolidated the two appeals. Burns requested dismissal of the appeal filed when the clerk construed his request for forms as a notice of appeal because he did not have enough money to pay two filing fees.
The Tenth Circuit noted that the Rule 60(b) motion was timely and not mooted by the dismissal of the cause since Rule 60(b) motions could only be filed after dismissal. However, it declined to consider the Rule 60(b) motion on its merits because the district court had no jurisdiction to enter the order considering the Rule 60(b) motion on its merits after the appeal was initially docketed via the clerk construing the request for forms as a notice of appeal. Therefore, the court of appeals vacated the portions of the order denying the Rule 60(b) motion and returned the case to the district court for it to rule on the Rule 60(b) motion after Burns is given an opportunity to submit evidence of non-receipt of the order to amend the complaint. The court also granted in forma pauperis status and waived filing fees on the inadvertently-filed second appeal. See: Burns v. Buford, 448 Fed.Appx. 844 (10th Cir. 2011) (unpublished).
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Related legal case
Burns v. Buford
|Cite||448 Fed.Appx. 844 (10th Cir. 2011)|
|Level||Unpublished Court of Appeals|