                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 19, 2007
                          FO R TH E TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court

 TON Y E. POW ELL,

              Plaintiff/Appellant,

 v.                                                     No. 06-1289
                                                (D.C. No. 06-CV-0545-ZLW )
 M R. RIOS (W arden), M R. W ILNER                       (D . Colo.)
 (S.I.A.), M R. KRIST (Lieutenant), and
 M R. ROM ERO (Property Officer),

              Defendants/Appellees.



                           OR D ER AND JUDGM ENT *


Before H ENRY, TYM K O VICH , and HO LM ES, Circuit Judges.


      This appeal involves the dismissal of a pro se prisoner action for failure to

comply with previous court orders directing plaintiff to file a formal complaint.

Unbeknownst to the district court, plaintiff filed a complaint on the last day of the

prescribed period for avoiding dismissal. However, the Clerk's Office for the

District of Colorado (“Clerk's Office”), along with the assigned magistrate judge,


      *
        This order and judgment is not binding precedent except under the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)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
believed that plaintiff intended to initiate a new civil action, and, several weeks

after receiving plaintiff's complaint, filed it under a new civil action number.

Plaintiff therefore never received the benefit of this filing in his original action.

      Because plaintiff complied with its orders, the district court abused its

discretion in dismissing plaintiff's action without prejudice pursuant to Fed. R.

Civ. P. 41(b). Accordingly, we REV ER SE the district court's judgment, and

R EM A N D for proceedings consistent w ith this opinion.

I.    B ACKGR OU N D

      The resolution of this appeal requires a detailed discussion of the

procedural background of two separate actions – Civil Action No. 06-CV-0545

(“06-CV-0545” or “first action”) and Civil Action No. 06-CV-1061 (“06-CV-

1061” or “second action”) – both before the same district court judge. 1 The

interplay between these actions is crucial to understanding why the district court



      1
             W e take judicial notice of the public documents filed in 06-CV-1061.
See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (noting
“discretion to take judicial notice of publicly-filed records in our court and
certain other courts concerning matters that bear directly upon the disposition of
the case at hand”; taking judicial notice of “publicly-filed records” in unrelated
criminal prosecution and appeal, including “appellate briefs, the criminal
judgment, and the transcript of the sentencing proceeding”); St. Louis Baptist
Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979)
(taking judicial notice of documents in separate federal district court action and
noting that “federal courts, in appropriate circumstances, may take notice of
proceedings in other courts, both within and without the federal judicial system, if
those proceedings have a direct relation to matters at issue”); accord Reyn's Pasta
Bella, LLC v. VISA USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking
notice of pleadings and other documents filed in related litigation).

                                           2
erred in dismissing 06-CV-0545.

      A.     Commencement of 06-CV-0545

      Plaintiff Tony Pow ell (“plaintiff”), a pro se prisoner, submitted an

application for a temporary restraining order on M arch 16, 2005. It was not filed

until M arch 27, 2006.

      In his motion, plaintiff claimed that prison officials placed him in a

segregated holding cell, after falsifying plaintiff's involvement in a physical

confrontation with another prisoner; denied him access to his own legal

documents; and precluded him from accessing the prison law library. Plaintiff

contended that these actions prevented him from meeting, in a pending appeal, the

deadline for filing a petition for certiorari in the Supreme Court. Plaintiff also

asserted that his disciplinary hearing officer recommended a penalty in violation

of prison policy for the allegedly spurious altercation.

      On M arch 27, 2006, the magistrate judge entered an “O rder Directing Clerk

to C om mence C ivil A ction A nd Directing Plaintiff to Cure Deficiency.” 06-C V-

0545, Doc. No. 1. The magistrate judge directed the Clerk of Court to

“commence a civil action,” but commanded plaintiff, if he wished to pursue his

claims, both to submit a motion and affidavit pursuant to 28 U.S.C. § 1915(a), or

to pay the applicable filing fee, and to file a proper complaint w ithin 30 days. Id.

at 1-2. Plaintiff's civil action was assigned case number 06-CV-0545.

      On April 5, 2006, plaintiff filed a petition to stay the proceedings.

                                          3
Plaintiff argued, in part, that he was in the beginning stages of exhausting his

administrative remedies through the prison grievance process. 2 The magistrate

judge denied this petition on April 6, 2006, on the ground that a “prisoner must

exhaust the available administrative remedies before initiating a federal law suit,

not while the lawsuit is pending.” R., Vol. I, Doc. No. 5 at 1.

      On April 13, 2006, plaintiff paid the $250.00 filing fee. On April 18, 2006,

plaintiff sought reconsideration of the April 6, 2006 Order denying his motion for

a stay of the proceedings. Plaintiff's reconsideration motion was denied the

following day.

          Plaintiff then lodged an objection with the district court. Plaintiff argued

that a litigant need not submit a civil complaint prior to seeking preliminary

injunctive relief pursuant to Fed. R. Civ. P. 65. He also argued that the

magistrate judge knew plaintiff could not satisfy the complaint requirement

because he had not exhausted his administrative remedies under the prison

grievance policy, as required by 42 U.S.C. § 1997e(a) of the Prison Litigation

Reform Act of 1995 (“PLRA”).

      On M ay 4, 2006, the district court overruled plaintiff's objection. The

district court construed plaintiff's objection as a challenge under 28 U.S.C. §




      2
            Plaintiff also argued that, although he was no longer confined to a
segregated unit, he continued to suffer from violations of his constitutional rights.


                                            4
636(b)(1)(A), which permits a district court to reconsider a magistrate judge's

resolution of any designated pretrial matter when the order is clearly erroneous or

contrary to law. Applying this standard, the district court held that the M arch 27,

2006 Order was appropriate because Fed. R. Civ. P. 3 requires a plaintiff to

comm ence an action through a “complaint”; it could not be done through a motion

for a temporary restraining order and a letter to the court. The district court

further held that there was no error of law in the April 6 and April 19, 2006

Orders because the PLRA mandates the exhaustion of administrative remedies

prior to bringing suit, see 42 U.S.C. § 1997e(a), and because a stay should not

issue when this administrative requirement has yet to be met.

      Despite agreeing with the magistrate judge's analysis, the district court did

not dismiss plaintiff's action. Instead, the district court afforded plaintiff 15 days

from the date of the entry of the Order to file a complaint.

      On M ay 16, 2006, plaintiff filed a petition for an enlargement of time in

which to file a complaint. On M ay 17, 2006, the magistrate judge denied

plaintiff's request for an open-ended extension, again stressing that the

completion of the exhaustion requirement is not an appropriate basis for

extending the time in which to file a complaint.

      B.     Commencement of 06-CV-1061

      On M ay 19, 2006, the Clerk's Office stamped as received plaintiff's

complaint.

                                           5
       Plaintiff's complaint named the same defendants as identified in his motion

for a tem porary restraining order, and it added one additional defendant,

plaintiff's disciplinary hearing officer. M irroring the arguments presented in his

motion for a temporary restraining order, plaintiff alleged that defendants

engaged in unconstitutional and tortious behavior, inter alia, by inventing the

existence of a physical altercation involving plaintiff and another prisoner, by

placing plaintiff in segregation for this fictional altercation, and by intentionally

denying plaintiff access to the law library and to documents necessary to file a

petition for certiorari in the Supreme Court. Plaintiff further alleged that he was

denied due process during the disciplinary proceedings regarding the allegedly

fabricated incident. 3

       Plaintiff did not attach a civil action number to his complaint. Nor did he

identify 06-CV-0545 as a pending civil action. As a consequence, plaintiff's

complaint was treated as a separate action, rather than as part of the action in

which he filed his motion for a temporary restraining order – that is, 06-CV-0545.

       Plaintiff's complaint was not accompanied by a filing fee, or a motion and

affidavit for leave to proceed pursuant to 28 U .S.C. § 1915. Presumably because

of this perceived deficiency, it was not docketed immediately. Ultimately, on

June 5, 2006, the magistrate judge assigned to plaintiff's first action directed the



       3
            Plaintiff also attached documents purporting to demonstrate that he
exhausted his administrative remedies as to the tort claims.

                                           6
Clerk of Court to commence a new civil action, with a new civil action number.

He also commanded plaintiff to pay a new filing fee or to comply with 28 U.S.C.

§ 1915 within 30 days. The new civil action was designated No. 06-CV-1061,

and it ended up on the docket of the same district judge handling the first action

(i.e., 06-C V-0545).

      C.     Dismissal of 06-CV-0545

      On M ay 25, 2006, the district court entered an “Order and Judgment of

Dismissal” in 06-CV-0545. R., Vol. I, Doc. No. 13 at 1-2. The district court

dismissed plaintiff's action without prejudice as a response to plaintiff's perceived

failure to file a complaint in accordance with the deadlines identified in the

M arch 27, 2006 and M ay 4, 2006 Orders. The district court further denied as

moot plaintiff's application for a temporary restraining order.

      On June 5, 2006, plaintiff filed a motion to reopen the action. Plaintiff

contended that on M ay 16, 2006, he submitted a “Bivens civil complaint” alleging

a variety of claims against defendants. R., Vol. I, Doc. No. 16 at 1. Plaintiff also

provided verification from the prison mailroom that he sent legal mail on M ay 8,

2006 and M ay 16, 2006. Plaintiff suggested that his complaint may have been

lost in the mail, but failed to attach a copy of this document. He asked the district

court to investigate the matter.

      On June 14, 2006, plaintiff sought clarification of the district court's M ay

25, 2006 Order. Again, plaintiff contended that he submitted a civil complaint on

                                          7
or about M ay 16, 2006.

      The district court denied plaintiff's motion for clarification, emphasizing

that its M ay 25, 2006 Order “speaks for itself.” R., Vol. I, Doc. No. 21 at 1.

Plaintiff also was admonished to place the correct docket number on all filed

docum ents, due to his simultaneous litigation of two pending actions – 06-CV-

1061 and 06-CV-0545.

      On July 6, 2006, the district court construed plaintiff's June 5, 2006 motion

to reopen as a motion for reconsideration pursuant to Fed. R. Civ. P. 59(e). The

district court, however, found that plaintiff failed to provide any legal basis why

it should reconsider and vacate its decision to dismiss the action without

prejudice. No mention was made of the M ay 19, 2006 complaint.

      D.     Dismissal of 06-CV-1061

      On July 14, 2006, the district court dismissed without prejudice plaintiff's

complaint in 06-CV-1061. This dismissal was a response to plaintiff's failure to

comply with the magistrate judge's June 5, 2006 Order requiring plaintiff either to

satisfy the requirements of 28 U.S.C. § 1915 or to pay the $350.00 filing fee.

Specifically, the district court found that although plaintiff submitted a motion for

leave to proceed pursuant to 28 U.S.C. § 1915, he failed to provide a certified

copy of his trust fund account statement pursuant to 28 U.S.C. § 1915(a)(2).

      Plaintiff subsequently filed a motion to amend the judgment pursuant to

Rule 59(e), and a motion for reconsideration pursuant to Rule 60(b). Both

                                          8
motions were timely. In the latter motion, plaintiff underscored the district

court's erroneous creation of two separate civil actions:

      On M ay 4, 2006, the court in overruling petitioner's objection
      motion, allowed Petitioner 15 days from the date of that order to to
      [sic] submit a complaint as initially directed in M arch 27, 2006,
      order to cure.

             Petitioner [o]n M ay 16, 2006, submitted the requested
      complaint, however, added to the complaint was DHO hearing officer
      Dunlap, and where M r. Rios W arden's name w as the head of the
      complaint, petitioner placed M r. W ilner's name as the head of the
      complaint without realizing that, this would change the complaint
      entirely and and [sic] actually began [sic] a new civil action.

             Petitioner, Powell did not intend to began [sic] another action,
      and now seeks to correct the m istake pursuant to Rule 60(a), because
      Civil Action No. should not have been initiated, and was initiated in
      error . . . .

06-C V-1061, Doc. No. 8 at 3 (emphasis added).

      On July 28, 2006 and August 9, 2006, respectively, the district court denied

plaintiff's Rule 59(e) and Rule 60(b) motions. The district court found that

plaintiff failed to demonstrate a legally sufficient basis for reconsideration of the

July 14, 2006 Order.

      E.     Appeal in N o. 06-CV-0545

      On July 17, 2006, plaintiff filed a notice of appeal with the district court in

06-CV-0545. However, because plaintiff failed to pay the requisite filing fee or

to submit a motion and affidavit for leave to proceed on appeal pursuant to 28

U.S.C. § 1915, the district court issued an Order requiring plaintiff to cure the



                                           9
deficiencies in plaintiff's notice of appeal within thirty days. Plaintiff's appeal

was docketed with this Court on July 19, 2006.

         On July 28, 2006, plaintiff filed a motion and affidavit for leave to proceed

on appeal pursuant to 28 U.S.C. § 1915. He also filed a copy of the income

statement for his prison account. On August 8, 2006, the district court denied

plaintiff's motion, explaining that the appeal lacked a reasoned, non-frivolous

basis.

         F.    Appeal in N o. 06-CV-1061

         On August 15, 2006, plaintiff filed a notice of appeal in 06-CV-1061.

Plaintiff again detailed the confusion surrounding the district court's treatment of

his complaint, noting that it w as not his intention to initiate a new action.

         On September 5, 2006, plaintiff sought leave to proceed on appeal pursuant

to 28 U.S.C. § 1915. As in 06-CV-0545, the district court denied this motion on

the ground that the appeal was not taken in good faith. Ultimately, after the

appeal was docketed, plaintiff filed a motion to dismiss the appeal, which was

granted by this Court on January 24, 2007.

II.      D ISC USSIO N

         The instant appeal relates only to the resolution of plaintiff's first action –

06-CV-0545. Plaintiff argues that the district court erred by dismissing his action

for failure to comply with the M arch 27, 2006 and M ay 4, 2006 Orders w hen, in




                                             10
fact, plaintiff filed a complaint by the applicable deadline. 4 W e review for abuse

of discretion the district court's decision to dismiss an action for failure to comply

with a court order. See Cosby v. M eadors, 351 F.3d 1324, 1326 (10th Cir. 2003).

Although not expressly stated by the district court, we presume that the dismissal

without prejudice was pursuant to Rule 41(b). Cf. Brown v. Beck, 203 Fed. Appx.

907, 909 (10th Cir. Aug. 1, 2006) (unpublished) (treating dismissal of PLRA

plaintiff's complaint without prejudice for failure to comply with court order to

pay partial filing fee as dismissal pursuant to Rule 41(b)); Florence v. Decker,



      4
               Plaintiff also contends that the district court comm itted legal error by
requiring him to file a complaint in addition to his motion for a temporary
restraining order. W e conclude in text below that plaintiff timely filed his
complaint in the first action. This filing seemingly would render moot plaintiff’s
contention concerning his motion for a tem porary restraining order. In any event,
even if plaintiff's alternative assignment of error w as not a m oot point, it is
wholly without merit. The Federal Rules of Civil Procedure make clear that only
a properly-filed “complaint” can commence a civil action. See Fed. R. Civ. P. 3
(“A civil action is commenced by filing a complaint with the court.”); Fed. R.
Civ. P. 3 advisory committee's note, 1937 adoption (“This rule provides that the
first step in an action is the filing of the complaint.”). Absent a properly-filed
complaint, a court lacks power to issue preliminary injunctive relief. See, e.g.,
Alabam a v. United States Army Corps of Eng'rs, 424 F.3d 1117, 1134 (11th Cir.
2005) (“injunctive relief must relate in some fashion to the relief requested in the
complaint”), cert denied, 126 S.Ct. 2862 (2006); Adair v. England, 193 F. Supp.
2d 196, 200 (D.D.C. 2002) (“W hen no complaint is filed, the court lacks
jurisdiction to entertain the plaintiff's motion for [preliminary] injunctive
relief.”); P.K. Family Rest. v. IRS, 535 F. Supp. 1223, 1224 (N.D. Ohio 1982)
(denying request for temporary restraining order because “[a]bsent a complaint,
this Court lacks jurisdiction to entertain plaintiff's petition for injunctive relief”).




                                           11
153 Fed. Appx. 478, 479-80 (10th Cir. Oct. 28, 2005) (unpublished) (same).

      Rule 41(b) authorizes a district court, upon a defendant's motion, to order

the dismissal of an action for failure to prosecute or for failure to comply with the

Federal Rules of Civil Procedure or “any order of court.” Fed. R. Civ. P. 41(b).

This rule has been interpreted as permitting courts to dismiss actions sua sponte

when one of these conditions is met. See Link v. Wabash R.R. Co., 370 U.S. 626,

630-31 (1962); Olsen v. M apes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003).

Although generally a district court is not obligated to follow “any particular

procedures” when dismissing an action without prejudice under Rule 41(b),

Nasious v. Two Unknown B.I.C.E. Agents, No. 07-1105, __ F.3d __, 2007 W L

1895877, at *2 (10th Cir. July 3, 2007), its decision is nonetheless subject to

abuse-of-discretion review. See Petty v. M anpower, Inc., 591 F.2d 615, 617 (10th

Cir. 1979).

      Plaintiff argues that the district court abused its discretion in dismissing his

action pursuant to Rule 41(b) because he, in fact, complied with the M arch 27,

2006 and M ay 4, 2006 Orders by filing his complaint. W e agree. 5

      The district court ultimately dismissed plaintiff's action without prejudice

for failure to file a formal complaint, as required by the M arch 27, 2006 and the




      5
            Defendants did not enter an appearance or file a brief in this matter.
They took the position that they were not parties to the action because they were
never served with a formal complaint.

                                          12
M ay 4, 2006 Orders. In particular, the M ay 4, 2006 Order required plaintiff to

file a formal complaint by M ay 19, 2006. Contrary to the district court's ruling,

however, plaintiff did submit a formal complaint by the requisite deadline.

Plaintiff's complaint was marked as received by the Clerk's Office on M ay 19,

2006. The complaint asserted identical allegations as contained in plaintiff's

motion for a temporary restraining order. It also identified the same defendants –

with one additional defendant.

      Put simply, plaintiff satisfied the very condition that the district court used

to dismiss his action pursuant to Rule 41(b). Accordingly, the M ay 4, 2006

dismissal was an abuse of discretion. See Fed. R. Civ. P. 41(b) (requiring failure

to comply with order prior to dismissal); cf. Olsen, 333 F.3d at 1204-05 (district

court abused discretion in dismissing complaint with prejudice because, although

plaintiff was ordered to perfect service under Rule 4(i), responsibility for failing

to serve rested with M arshal's Service or district court).

      Our conclusion is not meant to criticize the district court, or the assigned

magistrate judge, in the handling of plaintiff's inartful pleadings. W e praise their

patience, and thoroughness, in responding to plaintiff's myriad of motions. It also

is clear that the M ay 4, 2006 Order was born out of confusion. Despite receiving

plaintiff's complaint on M ay 19, 2006, the last day of the 15-day deadline, the

Clerk's Office apparently believed that plaintiff intended to comm ence a new

action. The Clerk's Office therefore awaited the magistrate judge's direction,

                                          13
which came on June 5, 2006, to file plaintiff's complaint and to assign it a new

civil action number. Plaintiff's first action already had been dismissed by that

point.

         W e also stress that plaintiff was not blameless for the misfiling of his

complaint. Plaintiff never placed the correct civil action number on his

complaint, nor identified 06-CV-0545 in the body of this document. He also

failed to attach a copy of his complaint to either his June 5, 2006 motion to

reopen or his June 14, 2006 motion for clarification in 06-CV-0545.

         Nonetheless, we hold that plaintiff, a pro se litigant, cannot be penalized

for failing to anticipate the unintended re-routing of his complaint. This

determination is a natural byproduct of the principle that a pro se litigant's

pleadings are to be construed liberally, under a less stringent standard than those

drafted by lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). M oreover, the court-issued

generic form through which plaintiff presented his complaint stated that the civil

action number w as “[t]o be supplied by the court.” 06-CV-1061, Doc. No. 2 at 1.

         W e emphasize that plaintiff attempted to bring this filing mistake to the

district court's attention on several occasions, both in 06-CV-0545 and in 06-C V-

1061. For instance, each of plaintiff's motions to reopen in 06-CV-0545 alerted

the district court to the fact that he previously submitted a complaint on M ay 16,

2006. W ith even greater vehemence, and clarity, plaintiff argued in his

                                            14
reconsideration motions in 06-CV-1061 that he never intended to file a separate

action; indeed, that he submitted the complaint which initiated 06-CV-1061 to

comply with the district court's M ay 4, 2006 Order in 06-CV-0545. 6

III.   C ON CLU SIO N

       W e hold that plaintiff satisfied the condition for maintaining his action

identified in the M arch 27, 2006 and M ay 4, 2006 Orders by filing his complaint

within the time frame prescribed by the district court. Thus, we find that the

district court abused its discretion in dismissing without prejudice plaintiff's first

action, 06-CV-0545, for failure to cure. W e REV ER SE the dismissal of 06-CV-

0545, and R EM A N D to the district court for further proceedings. On remand, the

district court should direct the Clerk's Office to refile plaintiff's complaint in 06-

CV-0545. 7



       6
              It would defy logic for plaintiff, a pro se prisoner, to pay the filing
fee in one action, only then to subject himself to the requirement of paying an
additional filing fee (or seeking in form a pauperis status) to comm ence a new
civil action involving the same factual predicate as the first action.
       7
              W e express no view concerning the merits of plaintiff's action. Nor
is our decision meant to deter the district court from vigorously performing its
screening function under 42 U.S.C. § 1997e(c)(1). In carrying out that function,
however, the court will be operating under a different legal framew ork. In
particular, since the district court entered its dismissal order, the Supreme Court
decided Jones v. Bock, 127 S. Ct. 910 (2007), which held that a plaintiff's failure
to exhaust administrative remedies under the PLRA is an affirmative defense that
need not be pled. Id. at 921-22; see also Aquilar-Avellaveda v. Terrell, 478 F.3d
1223, 1225 (10th Cir. 2007) (discussing when district court may raise exhaustion
question sua sponte and how to proceed once raised, including giving plaintiff
opportunity to address issue).

                                          15
      W e further GR A N T plaintiff's request for leave to proceed on appeal

without the prepayment of fees under 28 U.S.C. § 1915. Although plaintiff has

made partial payments toward the filing fee, we remind plaintiff of his continuing

obligation to make such payments until the entire fee has been paid in full. See

28 U.S.C. § 1915(b)(1)-(2).


                                          Entered for the Court,


                                          Jerome A. Holmes
                                          Circuit Judge




                                        16
