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

                             FOR THE TENTH CIRCUIT                             February 26, 2018
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
TRAVIS HODSON,

      Plaintiff - Appellant,

v.                                                             No. 17-1339
                                                     (D.C. No. 1:16-CV-00446-MEH)
NANCY KROLL; MATTHEW ELBE;                                      (D. Colo.)
BRANDON WILLIAMS; ROBYN JUBA;
STEVE REAMS; UNKNOWN DEPUTY
(A); UNKNOWN DEPUTIES,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

       Travis Hodson, proceeding pro se, sued various state correctional officials and law

enforcement personnel for constitutional violations under 42 U.S.C. § 1983. He appeals

from the district court’s dismissal of his case without prejudice for failure to prosecute




       *
        After examining the briefs and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
under Fed. R. Civ. P. 41(b) and from the denial of his motion under Fed. R. Civ. P.

60(b)(1) for relief from the judgment dismissing his case.1

       “We review for an abuse of discretion an order dismissing an action for failure to

prosecute.” AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Associates, Inc., 552 F.3d

1233, 1236 (10th Cir. 2009). We also review for abuse of discretion a denial of “a

motion to set aside a default judgment for excusable neglect under Rule 60(b)(1).”

Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1166 (10th Cir. 2011).

       On March 3, 2017, the district court ordered Mr. Hodson to respond to the

defendants’ motion to dismiss the third amended complaint by March 26. Supp. App. at

55. The court learned at an intervening status conference that Mr. Hodson had been

determined incompetent in a state criminal case. The court ordered him to move for

appointment of counsel, which he did. Id. at 61-65. The court granted the motion, id. at

69-71, and endeavored but failed to find volunteer counsel for Mr. Hodson.

       On June 2, the district court so informed Mr. Hodson and ordered him to respond

to the motion to dismiss by June 26. ROA at 113. On June 12, this order was “return[ed]

to sender – no longer in custody.” Supp. App. at 89-90. The court then ordered Mr.

Hodson to show cause by July 20 why this case should not be dismissed for failure to

prosecute. ROA 114-16. That order was similarly returned. Supp. App. at 92-94.

       On July 21, the district court dismissed the case without prejudice under Rule

41(b) and entered judgment. ROA 117-22. In its order of dismissal, the court said Mr.

       1
        The parties consented to have a magistrate judge adjudicate this case. See 28
U.S.C. § 636(c). We will refer to “the district court” in discussing the rulings and
analysis that Mr. Hodson challenges.
                                            2
Hodson’s pro se status did not excuse his failure to comply with court orders. Id. at 119.

Even though the court was not required to do so because it dismissed the case only

without prejudice, it considered the more stringent criteria to determine whether an action

should be dismissed with prejudice and found they were satisfied here. Id. at 119-21; see

Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (listing the criteria for

dismissal with prejudice).

       On July 31, Mr. Hodson filed his motion for relief from the judgment, specifying

that he sought relief under Rule 60(b)(1) for “excusable neglect.” ROA 123-25. On

September 21, the district court denied the motion. Id. at 133. In doing so, the court

pointed out that Mr. Hodson said he had failed to notify the court of a change of address

because the last time he provided the court a new address in 2016, he did so “at risk for

dismissal as moot.” Id. at 132 (quoting Mr. Hodson’s Rule 60(b)(1) motion). In that

instance the court had instructed him that, because he had been transferred from one

facility to another, he should advise the court whether the transfer had mooted any of his

claims. Id. The court said this explanation for why he had failed to tell the court of his

new address in 2017 was “not justified.” Id.

       The district court also said that, although Mr. Hudson was adjudicated

incompetent to proceed in his criminal case, he had actively participated as a pro se

litigant in this case “for more than a year,” submitting various filings and giving notice to

the court of a previous change of address. Id. at 132-33. The court concluded that Mr.

Hudson had failed to show excusable neglect and therefore denied the motion. Id. at 133



                                              3
       On appeal, the only argument Mr. Hudson makes about the dismissal for failure to

prosecute and the denial of his Rule 60(b)(1) motion is that he did not receive his mail.2

The district court, however, not disputing this point, reasoned that Mr. Hudson’s

explanation for his failure to notify the court about a change of address did not establish

excusable neglect.

       After careful review of the record, the district court’s orders, and the parties’

briefs, we conclude, for substantially the same reasons stated by the district court, that

Mr. Hudson has not shown on appeal that the district court abused its discretion when it

dismissed his action without prejudice under Rule 41(b) or when it denied his motion for

relief from judgment under Rule 60(b)(1). Exercising jurisdiction under 28 U.S.C. §

1291, we therefore affirm the district court’s judgment.




       2
         Mr. Hudson makes this argument under the heading in his brief that lists only
the issue of his motion for relief from judgment. Aplt. Br. at 3. We afford his pro se
filings a liberal construction, see Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir.
2010), but we do not craft arguments or otherwise advocate for him, see Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Reading his pro se brief
generously, we understand his argument about not receiving mail to concern his
objections both to the dismissal of his case and to the denial of his motion for relief
from judgment.
                                              4
       We grant Mr. Hodson’s request to proceed in forma pauperis and remind him to

continue making partial payments of his appellate filing fee to the district court.




                                              Entered for the Court


                                              Scott M. Matheson, Jr.
                                              Circuit Judge




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