F I L E D U n i t e d S t a t e s C o u r t o f A p p e a l s T e n t h C i r c u i t 

### J u n e 1 , 2 0 2 1 C h r i s t o p h e r M . W o l p e r t C l e r k o f C o u r t UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES EDW ARD ROSE, Plaintif

f - Appellant,

v. DR. SANTINI; DR. D. OBA; A. OSAGIE, Phy sician Asst., Def

endant - Appellee. No. 20-1446 (D.C. No. 1:20-CV-03032-LTB)

(D. Colo.)

ORDER AND JUDGMENT *

Bef ore HOLMES , MATHESON , and PHILLIPS , Circuit Judges.

Mr. Jam e s Rose, proceeding pro se, 1 appeals f rom the district court’s dism issal of his civil rights action arising under Bivens v. Six Unknown Named Agents of the Federal

* This order and judgm ent is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. It m ay be cited, however, f

or its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1. Af ter exam ining the brief

s and appellate record, this panel has determ ined unanim ously that oral argum ent would not m aterially assist in the determ ination of

this appeal. S

e e F E D . R. A P P . P. 34(a)(2); 10 T H C IR . R

. 34.1(G). The case is theref

o re ordered subm itted without oral argum ent.
1 Because Mr. Rose appears pro se, we construe his f ilings liberally

but do not act as his advocate. S e e United States v. Parker , 720 F.3d 781, 784 n.1 (10th Cir. 2013).Bureau of Narcotics , 403 U.S. 388 (1971). 2 Pursuant to Federal Rule of Civil Procedure 41(b), the district court dism issed Mr. Rose’s Bivens action without prejudice f or f ailure to com ply with a court order and f

ailure to prosecute. Exercising jurisdiction under 28 U.S.C. § 1291, we af

f irm the district court’s order dism issing Mr. Rose’s Bivens action.

I Mr. Rose is incarcerated in a f e deral prison in Colorado. On October 8, 2020, he f iled a Bivens action, nam i ng as def endants two m edical prof essionals working at the prison. He alleged that, despite having been diagnosed with kidney f ailure in 2016, he has since then been denied m edical treatm ent in violation of the Eighth Am endm ent to the United States Constitution. Mr. Rose also f iled a request to proceed in forma pauperis (“IFP”), pursuant to 28 U.S.C. § 1915. The day af ter Mr. Rose f

iled his com

plaint, October 9, the district court ordered him to cure def

i ciencies in both his com

p laint and in his m otion to proceed IFP. Specif ically , Mr. Rose was ordered to ref ile his com

plaint on the current court-approved f orm , and he was also ordered to supply several pieces of

inf orm ation m issing f

rom his IFP m otion. The court’s order stated that Mr. Rose’s action would be dism issed without prejudice if he f

ailed to cure the def

iciencies within thirty

day s of the order’s date. Mr. Rose f

ailed to cure the def

iciencies and did not otherwise comm unicate with the district court thereaf

ter regarding its October 9 order. Consequently , on Novem ber

2 “[ A] B ivens action . . . provides a ‘private action f or dam ages against f ederal of f icers’ who violate certain constitutional rights.” Pahls v. Thomas , 718 F.3d 1210, 1225 (10th Cir. 2013) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 675 (2009)). 223, 2020, the court dism issed Mr. Rose’s action without prejudice f o r f a ilure to com

ply with a court order and f

ailure to prosecute, pursuant to Rule 41(b). Moreover, pursuant to 28 U.S.C. § 1915(a)(3), the district court certif ied that any

appeal by

Mr. Rose would not be in good f

aith. Consequently , the court denied Mr. Rose leave to proceed IFP on appeal. Mr. Rose then tim ely f iled a notice of

appeal. II As a threshold m a tter, we determ ine that the district court’s dism issal of Mr. Rose’s Bivens action is an appealable f i nal order. “[ A] dism issal without prejudice is usually not a f inal decision.” Amazon, Inc. v. Dirt Camp, Inc. , 273 F.3d 1271, 1275 (10th Cir. 2001). But “in this circuit, ‘whether an order of dism issal is appealable’ generally depends on ‘whether the district court dism issed the complaint or the action

. A dism issal of the com plaint is ordinarily a non-f inal, nonappealable order (since am endm ent would generally be available), while a dism issal of the entire action is ordinarily f inal.’” Moya v. Schollenbarger , 465 F.3d 444, 448–49 (10th Cir. 2006 ) (quoting Mobley v. McCormick , 40 F.3d 337, 339 (10th Cir. 1994)). “In evaluating f inality . . . we look to the substance and objective intent of the district court’s order, not just its term i nology .” Id. at 449. W e have said that “[ t]he critical determ ination [ as to whether an order is f inal] is whether plaintif

f has been effectively excluded f rom f ederal court under the present circum stances.” Amazon , 273 F.3d at 1275 (em p hasis added) (quoting Facteau v. Sullivan , 843 F.2d 1318, 1319 (10th Cir. 1988)). Here, the district court’s order expressly stated that Mr. Rose’s “ action will be

3dism issed without prejudice.” R. at 61 (Order of Dism issal, f

i led Nov. 23, 2020) (em phasis added). And, ordinarily , “if a district court order expressly and unam

biguously dism isses a plaintif

f ’ s entire action, that order is f inal and appealable.” M

oya , 465 F.3d at 450; see also Black v. Larimer Cty. , 772 F. App’x 763, 766 n.2 (10th Cir. 2018) (unpublished) (noting as to a dism issal f or f ailure to prosecute that “[ a]lthough the dism issal order was without prejudice, it is f i nal and appealable because it expressly dism isses the entire” action). Furtherm ore, we have no doubt that, as a result of the district court’s order, Mr. Rose “has been effectivelyexcluded f rom f ederal court under the present circum stances.” Amazon , 273 F.3d at 1275 (em p hasis added) (quoting Facteau , 843 F.2d at 1319). Accordingly , we conclude that the district court’s order dism issing Mr. Rose’s action without prejudice is f inal and appealable, and we proceed to the m erits. “Although the language of Rule 41(b) requires that the def endant f ile a m otion to dism iss, the Rule has long been interpreted to perm it courts [ a s here] to dism i ss actions sua sponte f

or a plaintif

f’s f a ilure to prosecute or com ply with the rules of

civil procedure or court’s orders.” Olsen v. Mapes , 333 F.3d 1199, 1204 n.3 (10th Cir. 2003); accord Nasious v. Two Unkown B.I.C.E. Agents , 492 F.3d 1158, 1161 n.2 (10th Cir. 2007)

. W e review a district court’s dism i ssal of an action pursuant to Rule 41(b) f or abuse of discretion. See Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n , 886 F.3d 852, 857 (10th Cir. 2018). “An abuse of discretion occurs where a decision is prem ised on an erroneous conclusion of law or where there is no rational basis in the evidence f o r the
4ruling.” Planned Parenthood of Kan. v. Andersen , 882 F.3d 1205, 1223 (10th Cir. 2018)

(quoting N.M. Dep’t of Game & Fish v. U.S. Dep’t of Interior , 854 F.3d 1236, 1245 (10th Cir. 2017)). Mr. Rose f

ails to show that the district court abused its discretion in dism issing his action. Even when construed liberally , Mr. Rose’s brief f ails to raise a single argum ent explaining how the court abused its discretion. Instead, he prim arily resorts to restating the m erits of

his various Bivens claim s. In that way , Mr. Rose has f ailed to m e et his basic obligation to establish a valid ground f or reversal. See Nixon v. City & Cty. of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015) (“The f i rst task of

an appellant is to explain to us why the district court’s decision was wrong.”). In his appellate brief

, Mr. Rose does allege f

or the f irst tim e that he never received the district court’s October 9 order directing him t o cure def iciencies in his com

plaint and in his IFP m otion. Moreover, af ter f iling his appellate brief

, Mr. Rose subm i tted an additional docum ent—a letter f r om a correctional counselor at the f ederal prison in which Mr. Rose is incarcerated. The counselor stated in the letter:

The tim in g o f this m ail [ i.e., presum ably , the October 9 order] was expected to b e d e li v e r ed to him in o r around October 2020. I have looked at records f

or i n c o mi n g legal m ail

. . . NO m ail has com e into the institution that was not d elivered t o [ Mr. Rose]. NO m ail has been rejected by the m ailroom

. To my k nowledge, Mr. Rose has not received the l etter in quest i o n f rom the c ourt through regular m ail either. Letter f rom J. Hicks, at 1 (dated Feb. 4, 2021) (f iled on Feb. 16, 2021, as “Errata” to Aplt.’s Br.). Mr. Rose suggests that this letter f rom the correctional counselor establishes
5that he never received a copy of the district court’s order. W e conclude, however, that this letter and the f ailure-to-receive contention that the letter ostensibly

supports do not open the door to relief on appeal f

or Mr. Rose. Standing alone, the unsworn, non-specif ic letter seem s to provide, at best, m odest evidentiary support f or Mr. Rose’s assertion that he f ailed to receive the district court’s October 9 order. But the m o re f

undam ental problem

f or Mr. Rose is that he never placed this letter or even the f

ailure-to-receive allegation bef o re the district court—as he should have done. See Allen v. Ministar, Inc. , 8 F.3d 1470, 1473–74 (10th Cir. 1993) (noting that “the proper scope of the record” on appeal is com prised of the m a terials presented to the district court); accord United States ex rel. Little v. Triumph Gear Systems, Inc. , 870 F.3d 1242, 1249 (10th Cir. 2017); cf. Havens v. Colo. Dep’t of Corr. , 897 F.3d 1250, 1259–60 (10th Cir. 2018) (noting that, ordinarily , argum ents not raised bef ore the district court are f orf eited). Specif i cally , there is no indication in the record that Mr. Rose ever inf o rm ed the district court that he f

ailed to receive the October 9 order. For exam ple, he did not inf

orm the court of

his f ailure to receive the order through a m otion f or post-judgm e n t relief

— e.g., a Rule 59(e) or Rule 60 m otion. Nor did he even m ak e this f ailure-to-receive disclosure through a less f orm al m eans, such as a letter. Instead, when the district court dism issed his action, Mr. Rose sim ply f iled a notice of

appeal. Consequently , Mr. Rose deprived the district court of an opportunity

to weigh his claim

and decide whether to grant him relief f rom its Rule 41(b) dism issal. It is f ar f r om certain that Mr. Rose would
6have secured relief by raising the m atter with the district court. Cf. Hodson v. Kroll , 712 F. App’x 831, 833 (10th Cir. 2018) (unpublished) (concluding that the plaintif f “has not shown on appeal that the district court abused its discretion when it dism issed his action without prejudice under Rule 41(b), or when it denied his m otion f o r relief f rom judgm ent under Rule 60(b)(1)” based upon the plaintif f’s claim that he “did not receive his m ail” af ter a change of

address); McCoy v. W

yo ., 683 F. App’x 662, 665 (10th Cir. 2017) (unpublished) (concluding that the district court “did not abuse its discretion” in deny ing a plaintif f’s m otion to reconsider a Rule 41(b) dism issal of his action, when the district court f ound the plaintif

f’s claim that he did not receive a court order was “unsupported by the record and lacking in credibility ”). But Mr. Rose should have done so. Moreover, Mr. Rose does not even m ake a m eaningf ul argum ent f

o r reversal here predicated on his alleged f ailure to receive the October 9 order. The closest Mr. Rose

com es to doing so is his bald assertion that the court “could have [ taken] in[ to] consideration that the postal of f ice could have m ade a m i stake due to the pandem ic issues.” Aplt.’s Br. at 9. 3 This “skeletal ref erence” is not enough to warrant review. United States v. Pursley , 577 F.3d 1204, 1231 n.17 (10th Cir. 2009). Accordingly , Mr. Rose’s f ailure to m ake a m eaningf ul argum ent f

or reversal based on his alleged f ailure to receive the October 9 order is reason, standing alone, to conclude that the letter and its

3 Because Mr. Rose’s brief —which is com

prised of a court f o rm and handwritten insert pages—does not precisely follow consecutive pagination, this pagenum ber ref erence is based on the electronically designated num

ber in the top right-hand corner of the brief

. 7underly ing f ailure-to-receive allegation do not open the door to appellate relief here. See Nixon , 784 F.3d at 1369 (noting that the plaintif f of f ered “nary

a word to challenge the basis of the dism issal”). In sum , we conclude that the district court did not abuse its discretion in dism issing Mr. Rose’s action under Rule 41(b). III For the f oregoing reasons, we AFFIRM the district court’s order dism issing Mr. Rose’s action pursuant to Rule 41(b). 4

ENTERED FOR THE COURT

Jerom e A. Holm es Circuit Judge

4 Mr. Rose f

iled a m otion seeking leave to proceed IFP on appeal. As evident f rom our previous discussion, he has f ailed to “show . . . the existence of a reasoned, nonf rivolous argum ent on the law and f acts in support of

the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). Accordingly , we deny his IFP m otion. Consequently , Mr. Rose is obligated to pay imm ediately

the outstanding balance of

the f i ling f ee. 8