                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 19, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 GWEN BERGMAN,

          Plaintiff-Appellant,
                                                        No. 09-1024
 v.                                            (D.C. No. 1:08-cv-02334-ZLW)
                                                         (D. Colo.)
 HOWARD O. KIEFFER,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.


      Plaintiff-Appellant Gwen Bergman, a federal prisoner, filed a pro se claim

alleging that Defendant-Appellee Howard Kieffer had fraudulently misrepresented

that he was an attorney, that she had paid him more than $70,000 in legal fees,

and that his fraud had caused her to be inadequately represented in court. The

district court dismissed Ms. Bergman’s claim because she failed to pay the

necessary filing fees or file a certified copy of her inmate trust fund account, as


      *
       After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent, except under the doctrines of law of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.
required by 28 U.S.C. § 1915(a)(2) for any inmate attempting to proceed in forma

pauperis. Ms. Bergman filed a motion for reconsideration, arguing that the prison

officials had refused to certify her trust fund account statement and wrongly

informed her that the lack of certification would not matter to the court. The

court construed her motion as a Rule 60(b) motion for relief from the court’s

order of dismissal, and denied the motion, holding that Ms. Bergman had failed to

demonstrate the sort of extraordinary circumstances necessary to warrant relief

under Rule 60(b).

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that the

district court abused its discretion by failing to grant Ms. Bergman’s Rule 60(b)

motion. 1 Accordingly we REVERSE the district court’s denial of Ms. Bergman’s

Rule 60(b) motion, and REMAND the case for further proceedings consistent with

this opinion.



I. Background

      Plaintiff-Appellant Gwen Bergman initiated the instant suit by filing a pro

se complaint against Defendant-Appellee Howard Kieffer in October 2008. The

      1
         This court has appellate jurisdiction over the district court’s dismissal of
this case even though the dismissal was without prejudice, because the district
court dismissed the entire action, not just the complaint. See B. Willis, C.P.A.,
Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1296 n.15 (10th Cir. 2008) (“A dismissal
of the complaint is ordinarily a non-final, nonappealable order (since amendment
would generally be available), while a dismissal of the entire action is ordinarily
final.”) (quoting Moya v. Schollenbarger, 465 F.3d 444, 448-49 (10th Cir. 2006)).

                                        -2-
district court found that Ms. Bergman’s complaint and motion to proceed in forma

pauperis were deficient because they were filed on the wrong forms, and ordered

Ms. Bergman to cure those deficiencies or her action and complaint would be

dismissed without prejudice. Ms. Bergman filed a new complaint in December

2008, in which she alleged that Defendant-Appellee Howard Kieffer fraudulently

misrepresented that he was a licensed attorney, that this fraud caused her to be

inadequately represented at her competency hearing before the court, and that,

despite his lack of qualifications, Mr. Kieffer collected over $70,000 in attorney’s

fees for representing her in that case. 2 The district court found that Ms.

Bergman’s new complaint and request to proceed in forma pauperis were filed

within the 30 days the district court designated for curing the deficiencies in her

initial complaint. However, the district court found that Ms. Bergman’s new

request to proceed in forma pauperis was deficient because it did not include a

certified copy of Ms. Bergman’s “trust fund account statement for the six-month

period immediately preceding” the filing of her complaint. (Dist. Ct. Order at 2.)

Despite the fact that the district court’s earlier order to cure had not explicitly

instructed Ms. Bergman to cure this particular deficiency, the court dismissed Ms.

Bergman’s action and complaint without prejudice.



      2
        Mr. Kieffer was recently convicted of mail fraud for holding himself out
to be a licensed attorney. See United States v. Howard O. Kieffer, 1:08-cr-54
(Dist. N.D., Guilty Verdict Entered Apr. 15, 2009).

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      After the district court dismissed her case, Ms. Bergman filed a motion to

reconsider, arguing that she had attempted to have her trust fund statement

certified by “Counselor Coleman at Carswell Medical Center Texas,” where Ms.

Bergman was being held, but that Ms. Coleman refused to comply with her

request. Ms. Coleman attached a certified copy of her trust account to that

motion. The district court denied her motion for reconsideration, holding that Ms.

Bergman had failed to show that her case raised the sort of “extraordinary

circumstances” necessary in order to warrant reconsideration under Rule 60(b).

The district court also denied Ms. Bergman’s request to proceed in forma pauperis

on appeal. Ms. Bergman appeals the district court’s denial of her motion for

reconsideration, and requests permission to proceed on appeal in forma pauperis.



II. Discussion

      The district court abused its discretion in denying Ms. Bergman’s motion

under Rule 60(b). See Smith v. United States, 561 F.3d 1090, 1097 n.8 (10th Cir.

2009) (“An order denying a postjudgment motion is reviewed for an abuse of

discretion.”). Although relief under Rule 60(b) is “extraordinary and may only be

granted in exceptional circumstances,” id. (citation and quotation omitted), “we

have also stated that the rule should be liberally construed when substantial

justice will thus be served,” McGraw v. Barnhart, 450 F.3d 493, 504-05 (10th Cir.




                                        -4-
2006) (citation and quotation omitted). This court concludes that “substantial

justice” would be served by granting Ms. Bergman’s Rule 60(b) motion.

      As a prisoner seeking to proceed in forma pauperis, Ms. Bergman had the

duty to “submit a certified copy of the trust fund account statement . . . for the

6-month period immediately preceding the filing of the complaint or notice of

appeal, obtained from the appropriate official of each prison at which the prisoner

is or was confined.” 28 U.S.C. § 1915(a)(2) (emphasis added). Ms. Bergman

represents that she requested the appropriate prison officials to certify her trust

fund account statement, but the prison officials refused to comply and wrongly

advised Ms. Bergman that the court did not require such certification. In her

motion for reconsideration, Ms. Bergman informed the district court of these

facts, and cured any remaining deficiencies by filing a certified copy of her trust

fund account. On the basis of Ms. Bergman’s representations, she was not at fault

for failing to file a certified copy of her trust account. Further, there was no

prejudice to defendant from that failure, she timely tried to cure that defect, and

the underlying claims are disturbing. Therefore, we conclude that the district

court abused its discretion by failing to grant Ms. Bergman’s Rule 60(b) motion.

Cf. In re Cendant Corp. PRIDES Litigation, 235 F.3d 176, 180 (3rd Cir. 2000)

(holding that district court abused its discretion in excluding class member’s

claim for failing to timely fail and denying class member’s Rule 60(b) motion

where class member failed to timely file because of the negligence or malice of

                                         -5-
his mailroom employee, and the district court had failed to consider the factors

for “excusable neglect” enumerated in Pioneer Inv. Serv. v. Brunswick Assoc.

Ltd. P’ship, 507 U.S. 380 (1993)).

      This court also grants Ms. Bergman’s motion to proceed in forma pauperis.

The district court denied Ms. Bergman’s motion to proceed in forma pauperis, and

certified that the appeal was not taken in good faith. The statutory language

appears to foreclose our ability to consider a request to proceed in forma pauperis

in these circumstances. See 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken

in forma pauperis if the trial court certifies in writing that it is not taken in good

faith.”). However, this court has previously held that “a party who seeks in forma

pauperis status and is certified by the district court as not appealing in good faith

may nonetheless move this court for leave to proceed on appeal in forma pauperis

pursuant to the mechanism set forth in [Fed. R. App. P.] 24(a)(5)”. Rolland v.

Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007). Ms.

Bergman has complied adequately with the procedures set forth in Fed. R. App. P.

24(a)(5). Accordingly, this court will grant Ms. Bergman’s motion to proceed in

forma pauperis.

      Finally, the court notes that the complaint fails to allege an appropriate

basis for subject matter jurisdiction in federal court. In an apparent effort to

invoke federal question jurisdiction, Ms. Bergman cited a number of federal

statutes in her complaint, but none of those statutes applies to this case. Rather, it

                                          -6-
appears that Ms. Bergman merely raises state law fraud claims, and that the

federal courts will only have jurisdiction over this case if the parties are diverse, a

fact that is not made clear in the pleadings. 3 This court therefore instructs the

district court to give Ms. Bergman an opportunity to allege an appropriate basis

for federal jurisdiction.



III. Conclusion

      For the foregoing reasons, this court GRANTS Ms. Bergman’s motion to

proceed in forma pauperis, REVERSES the district court’s dismissal of this case,

and REMANDS for further proceedings consistent with this opinion.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




      3
        The defendant, Mr. Kieffer, was recently convicted of mail fraud in North
Dakota, so the court suspects that the parties are likely diverse. Further, the
complaint seeks $170,000 in damages, so the amount in controversy requirement
has also likely been met.

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