* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

October 28, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DONALD E. NELSON,

Plaintiff-Appellant,

v.

H. A. RIOS, JR., Warden; DEBORAH

BRADFIELD, B.S.W.; DAVID

CRAGO, Ph.D.; DAVID M. TATERS,

Ph.D.; MICHELE ALLPORT,

Education Coordinator,

Defendants-Appellees.

No. 07-1194

(D.C. No. 06-cv-1813-ZLW)

(D. Colo.)

ORDER AND JUDGMENT*

Before HOLMES, HOLLOWAY, and SEYMOUR, Circuit Judges.

Plaintiff-appellant Donald E. Nelson, a former federal prisoner appearing

pro se, appeals from both the district court’s January 4, 2007, dismissal without

prejudice of his civil rights complaint and from the district court’s April 13, 2007,
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denial of his “motion for recall or for appeal.” The district court also denied

appellant’s subsequent motion for leave to proceed in forma pauperis (IFP) on

appeal pursuant to 28 U.S.C. § 1915 and Fed. R. App. 24. Appellant has renewed

that motion in this court. We deny it and dismiss the appeal.

Appellant filed his pro se civil rights complaint in February 2005 in the

United States District Court for the Southern District of Illinois, while he was an

inmate in the Federal Prison Camp in Marion, Illinois. Because the named

defendants were several officials at Federal Correctional Institute–Florence,

Colorado, where appellant had formerly been housed, R., Doc. 1, the Illinois court

transferred the case to the District of Colorado in September 2006, id., Doc. 1,

Attach. 3. In an order filed on November 18, 2006, the Colorado magistrate judge

entered an “order to file amended complaint and to show cause,” ordering

appellant to file within thirty days an amended complaint to remedy two defects: 

(1) to assert facts showing the personal participation of each named defendant in

the alleged conspiracy to violate his constitutional rights, and (2) to plead or

demonstrate exhaustion of administrative remedies. Id., Doc. 10. 

Appellant did not respond to the magistrate judge’s show cause order, and

on January 4, 2007, the district court filed an “order and judgment” dismissing the

complaint without prejudice for failure to follow the directives of the show cause

order and for failure to prosecute. Id., Doc. 11. In late March 2007, appellant

filed a motion styled “motion for recall or for appeal,” explaining that he never
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received the magistrate judge’s show cause order at the county jail in Mississippi

where he was housed at that time, and asking the court to set aside the dismissal. 

Id., Doc. 13. He admitted that his daughter had told him over the phone about the

show cause order within the thirty days he had been given to respond. Id. at 1. 

The district court construed appellant’s “motion for recall” as a motion for relief

from the judgment under Fed. R. Civ. P. 60(b) and, in an order filed on April 13,

2007, summarily denied it “for failure to present any extraordinary circumstances

that justify relief pursuant to Fed. R. Civ. P. 60(b).” R., Doc. 15, at 2. Appellant

appeals from both the dismissal of his complaint and the denial of his motion for

recall.

We review a dismissal for failure to comply with court orders and failure to

prosecute for abuse of discretion. Jones v. Thompson, 996 F.2d 261, 264

(10th Cir. 1993). We also review the denial of appellant’s motion for recall,

construed as a motion for relief from judgment under Fed. R. Civ. P. 60(b), for

abuse of discretion. See Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir.

2005). We hold that the district court did not abuse its discretion in this case.

The magistrate judge ordered appellant to file an amended complaint to

remedy two defects in his complaint: (1) to assert facts showing the personal

participation of each named defendant in the alleged conspiracy to violate his

constitutional rights, and (2) to plead or demonstrate exhaustion of administrative

remedies. R., Doc. 10, at 2-4. But shortly after the district court entered its
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dismissal order, the requirement that inmates specially plead or demonstrate

exhaustion was rejected by the Supreme Court in Jones v. Bock, 127 S. Ct. 910,

921 (2007). Freeman v. Watkins, 479 F.3d 1257, 1259-60 (10th Cir. 2007). We

therefore need not consider that requirement at this point, but only the sufficiency

of appellant’s factual allegations. 

We have reviewed appellant’s complaint, motion for recall or for appeal,

and brief on appeal. He made no attempt in his motion for recall or for appeal to

demonstrate that he could amend his complaint to assert facts showing the

personal participation of each named defendant in the alleged conspiracy to

violate his constitutional rights, see R., Doc. 13, and his brief on appeal shows

that his asserted facts remain conclusory and insufficient as a matter of law, see

generally Aplt. Br. Therefore, the district court did not abuse its discretion by

dismissing appellant’s complaint or by denying his motion for recall or for

appeal, construed as a motion for relief from judgment under Rule 60(b), and we

affirm both the district court’s “order and judgment” dismissing the complaint

without prejudice and its order denying the motion for recall or for appeal.

“[I]n order to succeed on a motion to proceed IFP, the movant must show a

financial inability to pay the required filing fees, as well as the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues

raised in the action.” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.
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2005). Appellant has not shown a reasoned, nonfrivolous argument on appeal,

and his motion for leave to proceed IFP on appeal is therefore denied. 

The appeal is DISMISSED.

Entered for the Court

William J. Holloway, Jr.

Circuit Judge