Taurus v. U.S. Department of Social Security

U.S. Court of Appeals for the Tenth Circuit July 9, 2012

Taurus v. U.S. Department of Social Security, 469 F. App'x 706 (10th Cir. 2012)

Opinion

ORDER AND JUDGMENT *

WADE BRORBY, Senior Circuit Judge.

Plaintiff Milagro Taurus appeals from a district court order dismissing this action without prejudice for failure either to cure deficiencies previously noted regarding her application to proceed in forma pauperis (IFP) or pay the required filing fee. We *707 have jurisdiction to review the dismissal order, notwithstanding that it is without prejudice, because it “expressly and unambiguously dismisses [the] plaintiffs entire action.” Moya v. Schollenbarger, 465 F.3d 444, 450 (10th Cir. 2006). We review the order for abuse of discretion, see Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir. 2003), and, finding none, we affirm.

Upon discovering that Ms. Taurus’ IFP application was not properly signed or notarized, 1 the magistrate judge issued an order citing the deficiencies and directing Ms. Taurus to cure them or pay the filing fee within thirty days. The magistrate judge warned that failure to comply with the order would result in dismissal of the action without further notice. After thirty days had passed without corrective action by Ms. Taurus, the district court ordered the case dismissed without prejudice. We discern no abuse of discretion in the court’s action. Ms. Taurus was given adequate notice of the deficiencies in her materials, what she needed to do to cure them, and what would happen if she did not do so by a specified deadline. Because the dismissal was without prejudice, no additional particularized procedures or findings were required. See AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., 552 F.3d 1233, 1236 (10th Cir. 2009).

A further observation is warranted. The filing fee is not the only problem plainly evident here. The complaint submitted in this ease was patently deficient in substance to support a cause of action; it is not possible to glean any plausible legal claim from its cryptic and fantastical allegations. We have no intention of deterring Ms. Taurus from pursuing any legitimate grievance she may have, and the dismissal of this case without prejudice preserves her right to do so. But she should know that in the event she exercises that right by commencing another action in the district court, submitting proper IFP materials or paying the requisite filing fee, that action will nonetheless be subject to summary dismissal if it is based on allegations of the sort advanced in this case.

The judgment of the district court is AFFIRMED. All pending motions are DENIED as moot.

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.

. The significant omission is the lack of notarization. Ms. Taurus’s signature does appear on the application, just not in the designated signature block.

Reference

Full Case Name: Milagro TAURUS, Plaintiff-Appellant, v. U.S. DEPARTMENT OF SOCIAL SECURITY, State Office; Michael J. Astrue, Commissioner of Social Security Administration, Defendants-Appellees
Status: Unpublished