                                                                               FILED
                                                                   United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                       February 17, 2016
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
DAVID WEBB,

     Plaintiff - Appellant,

v.                                                        No. 15-4132
                                                 (D.C. No. 1:15-CV-00059-RJS)
MICHAEL CALDWELL, Ogden City                                (D. Utah)
Mayor; MARK JOHNSON, Ogden City
Chief Administrator; JAY LOWDER,
Ogden City Public Service Director; EDD
BRIDGE, Ogden City Recreation Manager;
ROBERT GEIER, Supervisor at Ogden
City Golden Hours Senior Center;
REGINA WADMAN, Weber County
Senior Nutrition Coordinator; GEORGE F.
RENTY; OGDEN CITY
CORPORATION; TERRY THOMPSON,
Weber County Sheriff,

     Defendants - Appellees.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before GORSUCH, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________




      *
         After examining Appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
      David Webb appeals pro se from a district court order that denied his motion for

leave to proceed in forma pauperis (ifp) because his proposed complaint failed to state a

claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Exercising jurisdiction under the collateral-

order doctrine, see Lister v. Dep’t of Treasury, 408 F.3d 1309, 1310-11 (10th Cir. 2005),

we reverse and remand.

                                  I. BACKGROUND

      The relevant chronology of this case in district court is as follows:

      April 14, 2015—Mr. Webb filed his ifp motion and submitted a proposed

complaint against the Ogden City mayor and others for failing to take action against

an individual who had allegedly threatened him.

      April 28, 2015—A magistrate judge, having reviewed the motion and proposed

complaint, recommended the district court deny ifp and dismiss the proposed

complaint without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) because it failed to

state a claim. He also recommended “restrict[ing] Mr. Webb’s ability to proceed

[ifp] in the District of Utah” given the multitude of unsuccessful federal cases he had

filed in Utah and elsewhere. ROA, Vol. I at 4.

      May 5, 2015—Mr. Webb objected to the recommendation, arguing, among other

things, that he should be given leave to amend to rectify the proposed complaint’s

shortcomings.

      June 2, 2015—He filed a motion for leave to amend and attached a proposed

amended complaint.



                                           -2-
      August 21, 2015—He filed a second motion to amend and attached a new

proposed amended complaint.

      September 8, 2015—The district court adopted the magistrate judge’s

recommendation “in full,” denied the ifp motion, dismissed Mr. Webb’s proposed initial

complaint,1 and ordered Mr. Webb to show cause why filing restrictions should not be

imposed. The court also denied the motions to amend, stating “[t]here is no operative

[c]omplaint to [a]mend at this time,” because the original proposed complaint had not

been docketed.2 Id. at 214-15. Nevertheless, the court stated Mr. Webb could file a



      1
          The district court adopted “in full” the magistrate judge’s recommendation,
which included dismissal of the complaint “without prejudice.” The court then,
however, ordered the “proposed Complaint is DISMISSED,” suggesting dismissal
with prejudice. See Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir. 2010)
(noting “the district court did not indicate in its order whether it was dismissing
Plaintiff’s complaint with or without prejudice, and thus the court’s dismissal must
be treated as a dismissal with prejudice”). But given the district court’s full adoption
of the magistrate judge’s recommendation and the court’s accompanying statement
that its “ruling does not foreclose [that] an operative [c]omplaint may be filed in this
action in the future,” ROA, Vol. I at 350, it appears the court intended to dismiss just
the complaint and not the entire action. See Moya v. Schollenbarger, 465 F.3d 444,
449 (10th Cir. 2006). This appeal is thus interlocutory, see id. at 449-50, and our
jurisdiction to review the denial of ifp arises under the collateral-order doctrine, see
Lister, 408 F.3d at 1310-11.
      2
          In its order the court explained that

      Webb’s proposed Complaint was not previously entered on the court’s
      docket because Webb did not pay the required filing fee and his Motion
      for Leave to Proceed in Forma Pauperis was not granted. For the sake of
      a complete record, however, the initial proposed Complaint is attached
      as Exhibit A to this Order, although it is not operative in this case.

ROA, Vol. I at 214 n.1.

                                            -3-
complaint “in this action in the future” if (1) filing restrictions ultimately were not

imposed; (2) Mr. Webb retained counsel; or (3) Mr. Webb paid the filing fee.3 Id. at 215.

       September 14, 2015—Mr. Webb filed a notice of appeal challenging the

September 8 order.

                                      II. DISCUSSION

       We review the denial of ifp for an abuse of discretion. Lister, 408 F.3d at

1312-13. Mr. Webb challenges the September 8 order denying ifp on various grounds,

including that he should have been allowed to amend his complaint.

       Under the ifp statute, the district court may authorize the commencement of a suit

without prepayment of fees. 28 U.S.C. § 1915(a). It must dismiss “at any time” an ifp

action that “fails to state a claim on which relief may be granted.” Id. § 1915(e)(2)(B)(ii).

We have held that a pro se complaint filed under a grant of ifp can be dismissed under

§ 1915(e)(2)(B)(ii) “for failure to state a claim . . . only where it is obvious that the

plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an

opportunity to amend.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir.

1999).4


       3
        We are not clear why, if Mr. Webb files a complaint that states a claim, he
must pay a filing fee assuming he otherwise qualifies for ifp status, which is available
if the movant “show[s] a financial inability to pay the required filing fees, as well as
the existence of a reasoned, nonfrivolous argument on the law and facts in support of
the issues raised in the action.” Lister, 408 F.3d at 1312.
       4
         Similarly, when a defendant files a motion to dismiss a complaint for “failure
to state a claim upon which relief can be granted” under Federal Rule of Civil
Procedure 12(b)(6), “pro se parties generally should be given leave to amend” unless
“it is obvious that the plaintiff cannot prevail on the facts . . . alleged and it would be
                                             -4-
       Although in Perkins ifp status had been granted before the complaint was

dismissed, the need for a futility-of-amendment determination is at least as strong where

a court dismisses a proposed complaint under § 1915(e)(2)(B)(ii) when denying ifp,

especially when, as here, the plaintiff has submitted two proposed amended complaints

for consideration. See Rodriguez v. Steck, 795 F.3d 1187, 1188 (9th Cir. 2015) (holding

“that a district court’s denial of leave to proceed [ifp] is an abuse of discretion unless the

district court first provides a plaintiff leave to amend the complaint or finds that

amendment would be futile”); Tripati v. First Nat’l Bank & Tr., 821 F.2d 1368, 1370 (9th

Cir. 1987) (concluding that the district court did not abuse its discretion by denying ifp

where “the deficiencies of the [proposed] complaint could not be cured by amendment”).

       The magistrate judge recommended denial of ifp and dismissal of the original

proposed complaint without prejudice. Before the district court acted on this

recommendation, Mr. Webb filed two motions to amend the complaint and attached a

proposed amended complaint to each one. The court then adopted the magistrate’s

recommendation and also denied the motions to amend. But it did not address futility of

amendment before denying Mr. Webb’s ifp motion, despite his requests to amend the

proposed complaint, and did not appear to consider either of Mr. Webb’s proposed

amended complaints, stating that “[t]here is no operative [c]omplaint to [a]mend at this

time.” ROA, Vol. I at 214-15.


futile to” provide the chance to amend. Knight v. Mooring Capital Fund, LLC, 749
F.3d 1180, 1190 (10th Cir. 2014) (internal quotation marks omitted); see also Hall v.
Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991) (“[P]ro se litigants are to be given
reasonable opportunity to remedy the defects in their pleadings.”).
                                             -5-
       The district court should have considered futility of amendment. The record does

not show that it did. We are reluctant to assume the court implicitly made a futility

determination when it denied the motions for leave to amend because its basis to deny the

motions had nothing to do with the content of the proposed amended complaints.5 We

therefore remand for the district court to address futility of amendment.6

                                   III. CONCLUSION

       The district court should not have denied Mr. Webb’s ifp motion without

determining whether amending his proposed complaint would be futile. We reverse and

remand for further proceedings. We grant Mr. Webb’s motion to proceed ifp on appeal.


                                              ENTERED FOR THE COURT,



                                              Scott M. Matheson, Jr.
                                              Circuit Judge


       5
         Indeed, the district court’s statement that its denial of Mr. Webb’s motions to
amend “does not foreclose an operative complaint may be filed in this action in the
future,” ROA, Vol. I at 215, suggests amendment may not be futile.
       6
          Although judicial economy may be served if we were to assess the futility of
amendment, the district court has not addressed the merits of the motions for leave to
amend. Case law suggests under these circumstances the district court should make that
decision in the first instance. See Smith v. Casey, 741 F.3d 1236, 1243 n.7 (11th Cir.
2014) (stating it is “sound practice” for the district court to rule on a motion to amend in
the first instance); Iqbal v. Ashcroft, 574 F.3d 820, 822 (2d Cir. 2009) (per curiam) (“In
the ordinary course, we are accustomed to reviewing a district court’s decision whether to
grant or deny leave to amend, rather than making that decision for ourselves in the first
instance, and we apply a deferential, ‘abuse of discretion’ standard of review to the
district court’s informed discretion.”); Morse v. McWhorter, 290 F.3d 795, 801 (6th Cir.
2002) (observing “that the more prudent course of action” is generally for the district
court to consider leave to amend in the first instance).
                                           -6-
