Yellowbear v. Norris
693 F. App'x 737
| 10th Cir. | 2017Background
- Pro se Wyoming inmate Andrew John Yellowbear, Jr. sued under 42 U.S.C. § 1983 and moved to proceed in forma pauperis (IFP), submitting an inmate trust account statement showing a low balance; the district court granted IFP.
- Defendants later moved to dismiss, alleging Yellowbear had received a large deposit (~$17,483.30) and misrepresented his finances when requesting IFP.
- Yellowbear argued he was indigent when he sought IFP, that § 1915(a)(2) requires examination of only the prior six months, and that the deposit were exempt probate oil-and-gas royalty distributions, not subject to liens.
- The district court found the misrepresentation but declined to dismiss with prejudice as too severe; it revoked IFP (treated as requiring payment of the filing fee by a deadline) and denied a hearing as moot; it also denied leave to file a sur-reply and a magistrate judge denied a motion to set a deadline for potential intervenors.
- Yellowbear appealed those four rulings; the district court case remains pending (Yellowbear had not paid the filing fee and the case was not dismissed), with some motions (including partial summary judgment) still outstanding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appealability of IFP revocation/order directing payment of filing fee | Yellowbear treats the order as denial of IFP and invokes the Cohen collateral-order doctrine to justify immediate appeal | Defendants argue the order is not final/appealable because case remains pending and Yellowbear can pay fee or await dismissal then appeal | Court: Dismiss appeal for lack of jurisdiction — order did not bar Yellowbear from proceeding and thus is not immediately appealable under Cohen |
| Appealability of denial of leave to file sur-reply | Yellowbear: denial is reviewable on appeal now | Defendants: non-final, non-appealable interim ruling | Court: Not a final appealable order; appeal dismissed for lack of jurisdiction |
| Appealability of denial of hearing on motion to dismiss | Yellowbear: seeks immediate review | Defendants: denial of hearing is non-final and not appealable | Court: Denial of hearing is not final; no appellate jurisdiction |
| Appealability of magistrate judge’s denial to set a deadline for intervention | Yellowbear: challenges the magistrate’s order as appealable | Defendants: magistrate’s non-dispositive order is non-final and not appealable absent consent/designation | Court: Magistrate issued a non-dispositive order; not a final appealable decision under § 1291; appeal dismissed |
Key Cases Cited
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (establishes collateral-order doctrine permitting immediate appeal of certain nonfinal orders)
- Roberts v. United States Dist. Court, 339 U.S. 844 (per curiam) (denial of IFP is immediately appealable under Cohen)
- Lister v. Dep’t of Treasury, 408 F.3d 1309 (10th Cir.) (IFP denial is collateral where truly indigent plaintiff would be barred from proceeding)
- Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (recognizes collateral-order principles where denial would render review impossible)
- Burnett v. Miller, [citation="507 F. App'x 796"] (10th Cir.) (IFP denial not collateral where plaintiff later paid fee and thus was not barred from proceeding)
- Arney v. Finney, 967 F.2d 418 (10th Cir.) (Cohen doctrine requires that denial of immediate review render rights irretrievably lost)
- First Union Mortg. Corp. v. Smith, 229 F.3d 992 (10th Cir.) (scope of magistrate judge authority under 28 U.S.C. § 636)
- Colo. Bldg. & Constr. Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809 (10th Cir.) (magistrate judges cannot issue final appealable § 1291 decisions absent consent/designation)