FILED

United States Court of Appeals

Tenth Circuit

November 20, 2017

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD RICE, and Arapahoe

County Inmates,

Plaintiffs,

v.

SHERIFF DAVID WALCHER, in his

official and individual capacities;

ARAPAHOE COUNTY DETENTION

FACILITY,

Defendants - Appellees.

________________________

RAYMOND BECKER,

Appellant. 

No. 17-1047

(D.C. No. 1:16-CV-02638-LTB)

D. Colorado

ORDER AND JUDGMENT*

Before KELLY, MURPHY, and MATHESON, Circuit Judges.

After examining the briefs and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

*

This order and judgment is not binding precedent except under the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.
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.

Petitioner, Richard Rice, is a Colorado state inmate housed at the Arapahoe

County Correctional Facility. Proceeding pro se, he brought a civil rights

complaint pursuant to 42 U.S.C. § 1983, alleging unsafe and unsanitary

conditions at the facility, outrageous conduct by deputies, and the denial of

inmates’ basic human needs. A United States Magistrate Judge ordered Rice to

file an amended complaint, clarifying the claims being asserted. In response,

Rice submitted a declaration containing additional, general allegations. Another

inmate at the Arapahoe County Correctional Facility, Raymond Becker, also filed

a declaration complaining of conditions at the facility and referencing various

examples of alleged misconduct by prison deputies and staff. 

On November 21, 2016, Rice filed a motion for class certification. This

pleading was also signed by Becker. The magistrate judge denied the motion on

December 9, 2016. In that order, the magistrate judge reminded Rice of his

obligation to file an amended complaint. Rice, thereafter, filed a “pro se

supplement to complaint” together with a motion to add Becker as a plaintiff. 

These pleadings were also signed by Becker. An additional “pro se supplement to

complaint” signed by both Rice and Becker was filed on December 29, 2016. 

On January 18, 2017, the district court dismissed Rice’s complaint without

prejudice. After referencing all the pleadings and other documents filed by Rice,

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the court concluded none complied with the magistrate judge’s order to file an

amended complaint. 

Rice and Becker filed a joint notice of appeal. Rice’s motion to proceed in

forma pauperis (“ifp”) on appeal was denied by the district court. Because Rice

failed to pay the appellate filing fee or file an ifp motion with this court, his

appeal was dismissed for failure to prosecute on May 17, 2017. Becker filed an

ifp motion and an appellate brief. Becker, however, was not a party below and

did not move to intervene. He, therefore, does not have standing to appeal the

dismissal of Rice’s complaint without prejudice. Hutchinson v. Pfeil, 211 F.3d

515, 518-19 (10th Cir. 2000) (holding a proposed plaintiff has no substantive

interest in the outcome of an action when the dismissal by the district court was

not a ruling on the merits). Accordingly, this appeal is dismissed for lack of

appellate standing. Becker’s motion to proceed ifp is denied and he is reminded

of his obligation to immediately remit any unpaid balance of the appellate filing

fee. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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