UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

LEWIS ROGER MOORE, 

 Claimant - Appellant, 

and 

JESSE F. MONTEZ; DAVID 

BRYAN; GEORGE KARL; GILPIN 

EUGENE; JOHN ARMINTROUT; 

KENNETH GARCIA; RICHARD K. 

ALLEN; JIMMY R. BULGIER, as 

representatives of themselves and 

all others similarly situated, 

 Plaintiffs, 

v. 

JOHN HICKENLOOPER; FRANK 

GUNTER, Former Executive 

Director of the Colorado Department 

of Corrections; BEN JOHNSON, 

Former Warden of Colorado 

Territorial Correctional Facility; 

CHERYL SMITH, Medical 

Administrator at CTCF; ARI 

ZAVARAS, Executive Director of 

Colorado Department of 

Corrections; BOB FURLONG, 

Warden of Limon Correctional 

Facility; DEPARTMENT OF 

CORRECTIONS; BILL PRICE, 

Warden of the Arkansas Valley 

Correctional Center; R. MARK 

MCDUFF, Warden of the Arrowhead 

Correctional Center, the Four Mile 

Correctional Facility, the Skyline 

Correctional Center, and the PreNo. 17-1115 

(D.C. No. 1:92-CV-00870-CMAMEH) 

(D. Colo.) 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 22, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

Release Correctional Center; GARY 

NEET, Warden of the Buena Vista 

Correctional Facility; WARREN 

DIESSLIN, Former Warden of the 

Buena Vista Correctional Facility; 

FRANK MILLER, Warden of the 

Centennial Correctional Facility; 

DONICE NEAL, Warden of the 

Colorado State Penitentiary; MARK 

WILLIAMS, Warden of the 

Colorado Women’s Facility; MARK 

MCKINNA, Warden of the Colorado 

Territorial Correctional Facility; J 

FRANK RICE, Warden of the 

Denver Reception and Diagnostic 

Center; LARRY EMBRY, Warden of 

the Fremont Correctional Facility; 

TOM COOPER, Former Warden of 

the Fremont Correctional Facility; 

BILL BOGGS, Warden of the Rifle 

Correctional Facility; BILL 

BOKROS, Warden of the Pueblo 

Minimum Center; DAVID HOLT, 

Medical Administrator; JEAN 

MOLTZ, Medical Administrator; 

RON JOHNSON, Medical 

Administrator; DON LAWSON, 

Administration Director; BOB 

MOORE, Medical Supervisor; 

RONALD G PIERCE; JOHN DOES, 

Current and Former Wardens of any 

correctional facility maintained, 

operated or controlled by the 

Colorado Department of 

Corrections; JOHN ROES, 

 Defendants - Appellees. 
3 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. 

_________________________________ 

This appeal arises out of a class action, Montez v. Hickenlooper. This 

class action resulted in presentation of individual damage claims to a 

special master. One of these claims was decided twelve years ago. The 

claimant, Mr. L.R. Moore, obtained a monetary award, but he has never 

been paid. He complains not only of the nonpayment but also of the failure 

to replace a stolen wheelchair and the inability to participate in settlement 

talks involving the class as a whole. The district court denied relief, and 

we affirm in part and reverse in part.1

I. Background 

In a 2003 remedial plan, the parties in the class action agreed that a 

special master would decide class members’ individual damage claims, 

subject to review by the district court. In a 2005 claim, Mr. Moore asserted 

claims for (1) replacement of a custom-made wheelchair allegedly stolen 

 

*

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value under Fed. 

R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 

1

 Jurisdiction exists under the collateral order doctrine. See Montez v. 

Hickenlooper, 640 F.3d 1126, 1132-33 (10th Cir. 2011). 
4 

by prison staff and (2) damages for diminished wheelchair access to a 

prison dining hall. 

The special master did not order the defendants to provide Mr. Moore 

with a new wheelchair, but the special master did award Mr. Moore $50 for 

diminished access to the dining hall. In 2008, Mr. Moore complained to the 

special master that the defendants had not paid the $50 and again raised an 

issue involving the wheelchair. But the special master declined to address 

these complaints.2

In 2016, Mr. Moore again filed objections in the district court, 

alleging nonpayment and failure to provide a wheelchair equivalent to the 

one that was allegedly stolen. In these objections, Mr. Moore also sought 

to participate in the ongoing negotiations involving class issues, insisting 

that his participation was necessary to protect the interests of himself and 

other class members. The district court overruled the objections and denied 

reconsideration in 2017, leading Mr. Moore to appeal. 

 

2

 And in 2010, Mr. Moore mentioned in a district court filing that the 

defendants had not paid his $50 damage award. But the district court did 

not address this issue. 
5 

II. Enforcement of the $50 Award 

In part, Mr. Moore seeks enforcement of the $50 award. The 

defendants acknowledge that they have not paid the award and do not 

question the enforceability of the award or the court’s authority to order 

payment. Instead, the defendants contend that they can wait to pay until 

Mr. Moore completes an accurate W-9 tax form, which he has not done. 

The district court agreed with the defendants, and we engage in de novo 

review. See Woodruff v. Herrera, 623 F.3d 1103, 1109-10 (10th Cir. 2010) 

(de novo review on matters of law). 

 In conducting this review, we conclude that the district court erred. 

The W-9 is an IRS form submitted to a payee by an individual or entity 

“who is required to file an information return with the IRS.” R. Vol. II, 

at 147. But the defendants have not identified any requirement to file an 

information return for the payment to Mr. Moore. Cf. IRS Pub. 583, 

Information for Business Taxpayers, 1988 WL 485178, at *6 (rev. 

Nov. 1988) (stating circumstances in which an information return is 

required). 
6 

But let’s assume that an information return is required and that the 

payment is reportable. In these circumstances, the Internal Revenue Code 

identifies steps that the payor can take in the absence of a W-9 form. These 

steps include actions such as adding backup withholding in certain 

circumstances. See 26 U.S.C. § 3406(a); see IRS Pub. 1281 (Rev. 3-2017), 

Backup Withholding for Missing and Incorrect Name/TIN(s), 2017 WL 

4317150, at *3. Instead of taking these steps, however, the defendants 

unilaterally disobeyed the special master’s order without explaining the 

need for a W-9 form before paying the award. In the absence of such an 

explanation, the district court erred in failing to order enforcement of the 

$50 award. 

III. Replacement of the Wheelchair

In the 2005 proceeding, Mr. Moore complained that his custom-made 

wheelchair had been stolen by prison staff and was never replaced with an 

equivalent model. The defendants responded that they were in the process 

of providing Mr. Moore with a new wheelchair, and the special master 

declined to order relief on Mr. Moore’s complaint about his wheelchair. 

The defendants provided a wheelchair, but Mr. Moore alleges that the 

replacement was inadequate. 

With the passage of twelve years, it is too late for Mr. Moore to 

appeal the special master’s 2005 order on the ground that it should have 

specified the type of wheelchair to be provided. See Order, filed Mar. 23, 
7 

2010, ECF No. 4381 (setting April 16, 2010, as the deadline for “any pro 

se compliance/enforcement claims for individual . . . injunctive or 

equitable relief” under the 2003 remedial plan). And he cannot obtain 

relief by enforcing the 2005 award because that award did not include 

relief on the claim involving the wheelchair. Thus, the district court did 

not err in sustaining the 2016 objection involving the wheelchair. 

IV. Notice and an Opportunity to Participate in Settlement Talks

 The class action is ongoing, and the district court is apparently 

conducting settlement talks on classwide issues. Mr. Moore requested 

notice and an opportunity to participate, and the district court denied this 

request. This ruling was not erroneous. 3

 

 We have approved a protocol that prevents individual claimants from 

pursuing their own equitable claims relating to a class action while the 

class action is proceeding. McNeil v. Guthrie, 945 F.2d 1163, 1165-66 

(10th Cir. 1991). The district court followed this approach here, preventing 

disruption of the class-wide settlement discussions. This approach was not 

erroneous. 

 

3

 We need not decide the standard of review on this claim. The claim 

fails under any standard. 
8 

V. Leave to Proceed In Forma Pauperis 

 Mr. Moore requests leave to proceed without prepayment of costs. 

This request is granted, though Mr. Moore remains obligated to pay the 

filing and docketing fees. See 28 U.S.C. § 1915(b). 

VI. Deletion of Parties

 Mr. Moore also requests deletion of irrelevant parties. We deny this 

request because the appeal is part of the Montez class litigation. As a 

result, the other parties must be included in the caption. 

VII. Redaction of Medical Records

 Mr. Moore asks us to remove the redactions on the medical records 

submitted by the defendants. These records proved immaterial for our 

analysis; thus, we deny Mr. Moore’s request. 

VIII. Mr. Moore’s Amended Opening Brief and Addendum 

Mr. Moore has filed an unauthorized “Amended Opening Brief” and a 

separate “Addendum.” Both are stricken. 

After successfully requesting an extension of time, Mr. Moore filed 

his opening appeal brief on July 18, 2017, and the defendants responded on 

August 11, 2018. He then requested an extension of time for his optional 

reply brief based in part on alleged restrictions to law library access. We 

extended the deadline to September 8, 2017, for the reply brief. 

But the clerk’s office received nothing from Mr. Moore for over 

three months. Then, on December 28, 2017, the clerk’s office received a 
9 

document purporting to be an amended opening brief. In this document, 

Mr. Moore stated that he was late in filing it because of restrictions on 

access to research books and word processors. 

This explanation is unconvincing. In the amended brief and his 

subsequent addendum, Mr. Moore purports to add multiple claims based on 

numerous events post-dating the deadline for his reply brief. Allowing the 

amended brief and addendum would require the defendants to respond to 

the new allegations, creating even further delay. 

Mr. Moore knew that he needed to seek an extension of time, as he 

has filed multiple motions for extensions. Indeed, in the last order granting 

an extension of time, the clerk’s office stated that “[n]o further extensions 

will be granted on the Clerk’s authority.” Order (Aug. 21, 2017). 

Because an extension of time is unwarranted, we direct the clerk to 

strike the amended brief and the addendum. 

Entered for the Court 

Robert E. Bacharach 

Circuit Judge