*

 This order and judgment is not binding precedent except under the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

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

1

 Because Sensabaugh is proceeding pro se, we construe his filings

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

July 27, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GERALD SENSABAUGH,

Plaintiff-Appellant, No. 09-1562

v. (D. of Colo.)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF

COLORADO, and SUSAN JONES,

WARDEN, COLORADO STATE

PENITENTIARY,

Defendants-Appellees.

(D.C. No. 1:09-CV-01688-ZLW)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.** 

Gerald Sensabaugh, a prisoner in the custody of the Colorado Department

of Corrections proceeding pro se,1

 appeals the district court’s dismissal of his

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1

(...continued)

liberally. See Van Deelan v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). 

-2-

complaint. The district court dismissed the complaint for lack of subject matter

jurisdiction since the allegations in the complaint challenge the implementation of

settlement orders arising from a class action, Montez v. Owens, No. 92-cv-0870

(D. Colo.).

We have jurisdiction under 28 U.S.C. § 1291. We AFFIRM the district

court’s dismissal of Sensabaugh’s complaint in part and REMAND with

instructions to treat the remainder of the complaint as an attempt to initiate

enforcement proceedings under the Montez settlement agreement and to transfer it

to the Montez special masters.

I. Background

Sensabaugh is a member of the class in Montez, an action brought in the

District of Colorado against the Colorado Department of Corrections under the

Americans with Disabilities Act, 42 U.S.C. §§ 12101S12213, the Rehabilitation

Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983 on behalf of Colorado inmates

suffering from particular disabilities. A settlement agreement in the Montez class

action was approved in August 2003. 

The settlement agreement created a procedure by which special masters

evaluate individual class members’ claims for damages. The district court is

overseeing the settlement agreement’s implementation. 

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In May 2006, the special masters ordered the Department of Corrections to

provide Sensabaugh a new four-inch mattress or an egg-crate mattress; a new,

proper-fitting pair of shoes; and $250.00. Between July and September 2006, and

between February and April 2008, Sensabaugh submitted several documents—

styled as motions—to the district court, seeking enforcement and modification of

the special masters’ order. With respect to Sensabaugh’s 2006 submissions, the

district court issued an order in September 2006 stating the Department of

Corrections had achieved full compliance with the special masters’ order. 

Regarding Sensabaugh’s 2008 submissions, the district court issued an order in

September 2008 finding Sensabaugh’s claim had been fully adjudicated, holding

Sensabaugh’s submissions had been inappropriately filed as motions, and stating

additional filings by Sensabaugh would not be considered.

In December 2008, in an indirectly related matter, the special masters in

Montez filed a report, requesting guidance from the district court. The report

noted class counsel had asserted they do not represent class members on their

claims for individual damages sustained as a result of the Department of

Corrections’s continued non-compliance with the settlement agreement. The

report also indicated the Department of Corrections had stated no individual class

member should be able to seek personal relief. Finally, the report asked the

district court to determine whether the special masters should direct class

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members’ individual requests for damages relating to non-compliance to class

counsel. 

In July 2009, Sensabaugh filed another complaint, essentially seeking to

enforce the special masters’ May 2006 order. Sensabaugh’s complaint named the

district court and Colorado State Penitentiary Warden Susan Jones as defendants. 

In November 2009, the district court dismissed Sensabaugh’s suit. The

district court held it lacked subject matter jurisdiction and stated Sensabaugh

needed to direct any issues relating to the Department of Corrections’ compliance

with the special masters’ order to the class counsel in Montez. The district court

also noted § 1915 requires courts to dismiss actions at any time if they are

frivolous, malicious, fail to state a claim on which relief may be granted, or seek

relief from a defendant who is immune from such relief; informed Sensabaugh

future attempts to raise the same issues in a suit brought pursuant to § 1915 would

result in dismissal; and cautioned Sensabaugh his ability to file actions and

appeals under § 1915 could be barred if three or more of his actions or appeals

were dismissed for one of the aforementioned reasons. Sensabaugh appealed this

order in December 2009. 

In March 2010, the district court issued an order regarding the Montez

special masters’ December 2008 report. The order held McNeil v. Guthrie, 945

F.2d 1163 (10th Cir. 1991), governs the special masters’ treatment of individual

class members’ pro se motions, stated submissions relating to the enforcement of

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the special masters’ orders are properly filed pro se with the special masters, and

stipulated individual class members’ claims relating to the terms of or the

Department of Corrections’s compliance with the settlement agreement generally

are for class counsel to pursue. The order also stated the special masters could

accept no further pro se filings relating to the enforcement of their orders after

April 16, 2010. 

II. Discussion

We review a district court’s decision to dismiss a complaint for lack of

subject matter jurisdiction or under § 1915 de novo. See Rio Grande Silvery

Minnow (Hybognathus amarus) v. Bureau of Reclamation, 599 F.3d 1165, 1175

(10th Cir. 2010); Vasquez Arroyo v. Starks, 589 F.3d 1091, 1094 (10th Cir. 2009).

On appeal, Sensabaugh argues the district court erred by dismissing his

complaint. He also continues to seek enforcement of the special masters’ May

2006 order. 

“[I]ndividual prisoners lack standing to individually litigate matters relating

to [a] class action.” McNeil, 945 F.2d at 1166. When confronted with the

complaint of a class member seeking equitable relief based on issues relating to

the class action, a district court may dismiss the complaint without prejudice and

instruct the plaintiff to cooperate with class counsel or intervene in the class

action. See id.; Goff v. Menke, 672 F.2d 702, 705 (8th Cir. 1982) (cited with

approval in McNeil, 945 F.2d at 1166). Additionally, a district court may treat

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such a complaint as an attempt to initiate contempt proceedings and transfer it to

the class action docket. See Goff, 672 F.2d at 705.

Here, in accordance with McNeil, the district court dismissed Sensabaugh’s

complaint for lack of subject matter jurisdiction—Sensabaugh did not have

standing to bring his complaint. Without finding fault in that determination, and

noting the apparent confusion in Montez regarding whether individual class

members were to submit their requests for the enforcement of the special masters’

orders to class counsel, the special masters, or the district court, we conclude the

appropriate course is to treat Sensabaugh’s action as an effort to enforce the

special masters’ May 2006 order. 

To the extent Sensabaugh seeks to assert claims against the United States

District Court for the District of Colorado based on the district court’s rulings in

Montez, we dismiss Sensabaugh’s complaint. Sensabaugh’s vague and conclusory

allegations that the district court engaged in a conspiracy with the Department of

Corrections to deprive him of the relief ordered by the special masters fail to state

a claim on which relief may be granted. See Bixler v. Foster, 596 F.3d 751, 756

(10th Cir. 2010) (“[A] complaint must contain sufficient factual matter, accepted

as true, to state a claim for relief that is plausible on its face.”) (internal quotation

marks omitted). Moreover, insofar as Sensabaugh attempts to hold the district

court liable for its decisions, Sensabaugh again fails to state a claim on which

relief may be granted. “A judge is immune from liability for his judicial acts

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even if his exercise of authority is flawed by the commission of grave procedural

errors.” Moss v. Kopp, 559 F.3d 1155, 1163–64 (10th Cir. 2009) (internal

quotation marks omitted). 

Viewing the remainder of Sensabaugh’s complaint as an attempt to initiate

enforcement proceedings, we remand to the district court for transfer to the

Montez court for evaluation by the special masters, for several reasons. First, the

special masters in Montez are familiar with evaluating individual class members’

efforts to enforce the special masters’ orders. Second, reassigning the complaint

to the Montez court assures Sensabaugh’s requests will be directed to the

appropriate entity—i.e., class counsel, the special masters, or the district court. 

Finally, transferring Sensabaugh’s complaint would provide an opportunity for

Sensabaugh’s concerns to be addressed. As a practical matter, given that the

Montez court’s March 2010 order stated pro se filings relating to the enforcement

of orders would not be accepted after April 16, 2010, the issues Sensabaugh raises

may not be heard if he is forced to file new pro se submissions with the special

masters in Montez.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s dismissal of

Sensabaugh’s complaint in part and REMAND with instructions to treat the

remainder of the complaint as an attempt to initiate enforcement proceedings and

to transfer it to the Montez special masters. Further, we GRANT Sensabaugh’s

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motion to proceed on appeal in forma pauperis. Sensabaugh has shown a

financial inability to pay the required fees and, in accordance with our above

disposition, we do not find his appeal violated § 1915. Nevertheless, Sensabaugh

must make partial payments until the filing fee is paid in full. 

ENTERED FOR THE COURT

Timothy M. Tymkovich

Circuit Judge 

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