United States District Court, D. Colorado
PHILIP A. BRIMMER, District Judge.
This matter is before the Court on Petitioners Motion Pursuant to Fed.R.Civ.P. Rule 60(b)(6) [Docket No. 76] filed by plaintiff Eric Adams. The Court's jurisdiction is based on 28 U.S.C. § 1331.
Mr. Adams, who is currently incarcerated in the United States Penitentiary, Administrative Maximum ("ADX") in Florence, Colorado, brought this case on April 23, 2012, alleging that defendant prison officers tampered with his food in retaliation for Mr. Adams having filed complaints about them and with the intention of causing him physical harm or death. Docket No. 1 at 4. Mr. Adams moved the Court for leave to proceed in forma pauperis ("IFP") under 28 U.S.C. § 1915. Docket No. 2.
On at least three occasion prior to filing this case, Mr. Adams had brought an action that was dismissed on the grounds that it was frivolous or failed to state a claim upon which relief may be granted. Adams v. Wiley, et al., No. 09-cv-00612-MSK-KMT (D. Colo. Feb. 10, 2010) (dismissed pursuant to Fed. R. Civ. 12(b)(6) as untimely), aff'd, 398 F.Appx. 372 (10th Cir. Oct. 13 , 2010) (affirmed district court's dismissal on the basis that allegations failed to state a claim); Adams v. Trant, No. 09-cv-00779-UNA (D. D.C. Apr. 29, 2009) (dismissed pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim), aff'd, No. 09-5180 (D.C. Cir. Sept. 8, 2009); Adams v. Negron, et al., No. 02-cv-00631-EWN-MJW (D. Colo. Mar. 11, 2003) (dismissed for failure to state a constitutional violation), aff'd, No. 03-1110 (10th Cir. Feb. 25, 2004), cert. denied, No. 03-1110 (May 3, 2004).
On August 7, 2012, after twice ordering him to amend his complaint to meet the requirements of § 1915(g), see Docket Nos. 6-8 and 11, Magistrate Judge Boyd N. Boland granted Mr. Adams leave to proceed IFP with respect to his claims against Officers Foshee and Espinoza. Docket No. 12 at 3. On June 18, 2013, the Court granted summary judgment to the officers on Mr. Adams' claims, finding that Mr. Adams had failed to exhaust his administrative remedies against Officer Espinoza and had failed to effect service on Officer Foshee. Docket No. 63.
On June 27, 2013, Mr. Adams filed a Notice of Appeal. Docket No. 65. At the time he filed his appeal, he had neither paid the filing fee nor filed a motion with the Court for leave to proceed IFP on appeal. Docket No. 66. The day he filed his appeal, the Tenth Circuit Clerk of Court sent him a letter instructing him, in part, to pay the filing fee or file a motion with the district court to proceed without prepayment of fees. Case No. 13-1271, Docket No. 01019102776 at 7-8 (10th Cir. Aug. 1, 2013).
On July 1, 2013, the Tenth Circuit Clerk of Court ordered Mr. Adams to show cause why his appeal should not be dismissed under § 1915(g). Docket No. 68. On July 18, 2013, Mr. Adams filed a response to the Tenth Circuit's order to show cause in which he cited Judge Boland's August 7, 2012 Order granting him to leave to proceed IFP before this Court. No. 13-1271, Docket No. 01019093983 at 2-3 (10th Cir. July 18, 2013). He further stated that he was in imminent danger of serious physical harm because appellees had retaliated against him by placing things in his food, like glass, that caused him to vomit blood. Id. at 3-4.
On July 22, 2013, the Tenth Circuit issued an order that Mr. Adams had "failed to show cause why he should not be required to pay the full filing fee before proceeding in this matter" and ordered him to pay the full filing fee within twenty-one days. Case No. 13-1271, Docket No. 01019095663 (10th Cir. July 22, 2013). On August 1 and 7, 2013, Mr. Adams submitted letters to the Tenth Circuit Clerk of Court (which were received but not filed), asserting that the July 22, 2013 Order to pay the filing fee was void because it was signed by Jurisdictional Attorney Ellen Rich Reiter. Case No. 13-1271, Docket Nos. 01019102775 and 01019105595 (10th Cir. Aug. 1 and 7, 2013).
On August 1, 2013, Mr. Adams filed a motion before this Court for leave to proceed on appeal under 28 U.S.C. § 1915. Docket No. 72. The motion states that the basis for the appeal is that the Court's "order is erroneous and runs aberrant to appellants claims." Id. at 1, ¶ 2. The motion does not contain any other information about the nature of Mr. Adams' appeal. See id. On August 5, 2013, Mr. Adams filed a motion requesting that the Court "aid in the commencement" of his appeal, in which he argued that the order to pay the filing fee was void because the district court had already held that he could proceed IFP and Ms. Reiter did not have the authority to alter that finding. Docket No. 73 at 2-3. In addition to filing the motion with this Court, Mr. Adams sent a copy to the Tenth Circuit, which received the motion but did not file it. See Case No. 13-1271, Docket No. 01019105787 (10th Cir. Aug. 7, 2013).
Mr. Adams did not pay the filing fee. On August 14, 2013, the Tenth Circuit Clerk of Court issued an order dismissing Mr. Adams' appeal for lack of prosecution. Case No. 13-1271, Docket No. 01019109359 (10th Cir. Aug. 14, 2013).
On September 4, 2013, Mr. Adams filed the instant motion pursuant to Federal Rule of Civil Procedure 60(b)(6), arguing that the District Court Clerk erred by not filing Mr. Adams' August 7, 2013 motion with the Court of Appeals or otherwise notifying the Court of Appeals that it need not address § 1915. Docket No. 76 at 4-6. Mr. Adams argues that the actions of the District Court Clerk caused his appeal to be dismissed even though he had previously been granted leave by Judge Boland to proceed IFP. Docket No. 76 at 4-6.
On October 9, 2013, the Court denied as moot Mr. Adams' request for leave to proceed IFP on appeal and his request that the ...