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

                         FOR THE TENTH CIRCUIT                  January 22, 2018
                         _________________________________
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
LEWIS ROGER MOORE,

           Claimant - Appellant,

and
                                                      No. 17-1115
JESSE F. MONTEZ; DAVID                      (D.C. No. 1:92-CV-00870-CMA-
BRYAN; GEORGE KARL; GILPIN                               MEH)
EUGENE; JOHN ARMINTROUT;                               (D. Colo.)
KENNETH GARCIA; RICHARD K.
ALLEN; JIMMY R. BULGIER, as
representatives of themselves and
all others similarly situated,

           Plaintiffs,

v.

JOHN HICKENLOOPER; FRANK
GUNTER, Former Executive
Director of the Colorado Department
of Corrections; BEN JOHNSON,
Former Warden of Colorado
Territorial Correctional Facility;
CHERYL SMITH, Medical
Administrator at CTCF; ARI
ZAVARAS, Executive Director of
Colorado Department of
Corrections; BOB FURLONG,
Warden of Limon Correctional
Facility; DEPARTMENT OF
CORRECTIONS; BILL PRICE,
Warden of the Arkansas Valley
Correctional Center; R. MARK
MCDUFF, Warden of the Arrowhead
Correctional Center, the Four Mile
Correctional Facility, the Skyline
Correctional Center, and the Pre-
Release Correctional Center; GARY
NEET, Warden of the Buena Vista
Correctional Facility; WARREN
DIESSLIN, Former Warden of the
Buena Vista Correctional Facility;
FRANK MILLER, Warden of the
Centennial Correctional Facility;
DONICE NEAL, Warden of the
Colorado State Penitentiary; MARK
WILLIAMS, Warden of the
Colorado Women’s Facility; MARK
MCKINNA, Warden of the Colorado
Territorial Correctional Facility; J
FRANK RICE, Warden of the
Denver Reception and Diagnostic
Center; LARRY EMBRY, Warden of
the Fremont Correctional Facility;
TOM COOPER, Former Warden of
the Fremont Correctional Facility;
BILL BOGGS, Warden of the Rifle
Correctional Facility; BILL
BOKROS, Warden of the Pueblo
Minimum Center; DAVID HOLT,
Medical Administrator; JEAN
MOLTZ, Medical Administrator;
RON JOHNSON, Medical
Administrator; DON LAWSON,
Administration Director; BOB
MOORE, Medical Supervisor;
RONALD G PIERCE; JOHN DOES,
Current and Former Wardens of any
correctional facility maintained,
operated or controlled by the
Colorado Department of
Corrections; JOHN ROES,

           Defendants - Appellees.




                                       2
                        _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      This appeal arises out of a class action, Montez v. Hickenlooper. This

class action resulted in presentation of individual damage claims to a

special master. One of these claims was decided twelve years ago. The

claimant, Mr. L.R. Moore, obtained a monetary award, but he has never

been paid. He complains not only of the nonpayment but also of the failure

to replace a stolen wheelchair and the inability to participate in settlement

talks involving the class as a whole. The district court denied relief, and

we affirm in part and reverse in part. 1

I.    Background

      In a 2003 remedial plan, the parties in the class action agreed that a

special master would decide class members’ individual damage claims,

subject to review by the district court. In a 2005 claim, Mr. Moore asserted

claims for (1) replacement of a custom-made wheelchair allegedly stolen



*
      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under Fed.
R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
1
     Jurisdiction exists under the collateral order doctrine. See Montez v.
Hickenlooper, 640 F.3d 1126, 1132-33 (10th Cir. 2011).
                                       3
by prison staff and (2) damages for diminished wheelchair access to a

prison dining hall.

      The special master did not order the defendants to provide Mr. Moore

with a new wheelchair, but the special master did award Mr. Moore $50 for

diminished access to the dining hall. In 2008, Mr. Moore complained to the

special master that the defendants had not paid the $50 and again raised an

issue involving the wheelchair. But the special master declined to address

these complaints. 2

      In 2016, Mr. Moore again filed objections in the district court,

alleging nonpayment and failure to provide a wheelchair equivalent to the

one that was allegedly stolen. In these objections, Mr. Moore also sought

to participate in the ongoing negotiations involving class issues, insisting

that his participation was necessary to protect the interests of himself and

other class members. The district court overruled the objections and denied

reconsideration in 2017, leading Mr. Moore to appeal.




2
      And in 2010, Mr. Moore mentioned in a district court filing that the
defendants had not paid his $50 damage award. But the district court did
not address this issue.
                                      4
II.   Enforcement of the $50 Award

      In part, Mr. Moore seeks enforcement of the $50 award. The

defendants acknowledge that they have not paid the award and do not

question the enforceability of the award or the court’s authority to order

payment. Instead, the defendants contend that they can wait to pay until

Mr. Moore completes an accurate W-9 tax form, which he has not done.

The district court agreed with the defendants, and we engage in de novo

review. See Woodruff v. Herrera, 623 F.3d 1103, 1109-10 (10th Cir. 2010)

(de novo review on matters of law).

      In conducting this review, we conclude that the district court erred.

The W-9 is an IRS form submitted to a payee by an individual or entity

“who is required to file an information return with the IRS.” R. Vol. II,

at 147. But the defendants have not identified any requirement to file an

information return for the payment to Mr. Moore. Cf. IRS Pub. 583,

Information for Business Taxpayers, 1988 WL 485178, at *6 (rev.

Nov. 1988) (stating circumstances in which an information return is

required).

                                      5
       But let’s assume that an information return is required and that the

payment is reportable. In these circumstances, the Internal Revenue Code

identifies steps that the payor can take in the absence of a W-9 form. These

steps include actions such as adding backup withholding in certain

circumstances. See 26 U.S.C. § 3406(a); see IRS Pub. 1281 (Rev. 3-2017),

Backup Withholding for Missing and Incorrect Name/TIN(s), 2017 WL

4317150, at *3. Instead of taking these steps, however, the defendants

unilaterally disobeyed the special master’s order without explaining the

need for a W-9 form before paying the award. In the absence of such an

explanation, the district court erred in failing to order enforcement of the

$50 award.

III.   Replacement of the Wheelchair

       In the 2005 proceeding, Mr. Moore complained that his custom-made

wheelchair had been stolen by prison staff and was never replaced with an

equivalent model. The defendants responded that they were in the process

of providing Mr. Moore with a new wheelchair, and the special master

declined to order relief on Mr. Moore’s complaint about his wheelchair.

The defendants provided a wheelchair, but Mr. Moore alleges that the

replacement was inadequate.

       With the passage of twelve years, it is too late for Mr. Moore to

appeal the special master’s 2005 order on the ground that it should have

specified the type of wheelchair to be provided. See Order, filed Mar. 23,

                                       6
2010, ECF No. 4381 (setting April 16, 2010, as the deadline for “any pro

se compliance/enforcement claims for individual . . . injunctive or

equitable relief” under the 2003 remedial plan). And he cannot obtain

relief by enforcing the 2005 award because that award did not include

relief on the claim involving the wheelchair. Thus, the district court did

not err in sustaining the 2016 objection involving the wheelchair.

IV.   Notice and an Opportunity to Participate in Settlement Talks

      The class action is ongoing, and the district court is apparently

conducting settlement talks on classwide issues. Mr. Moore requested

notice and an opportunity to participate, and the district court denied this

request. This ruling was not erroneous. 3

      We have approved a protocol that prevents individual claimants from

pursuing their own equitable claims relating to a class action while the

class action is proceeding. McNeil v. Guthrie, 945 F.2d 1163, 1165-66

(10th Cir. 1991). The district court followed this approach here, preventing

disruption of the class-wide settlement discussions. This approach was not

erroneous.




3
       We need not decide the standard of review on this claim. The claim
fails under any standard.
                                      7
V.    Leave to Proceed In Forma Pauperis

      Mr. Moore requests leave to proceed without prepayment of costs.

This request is granted, though Mr. Moore remains obligated to pay the

filing and docketing fees. See 28 U.S.C. § 1915(b).

VI.   Deletion of Parties

      Mr. Moore also requests deletion of irrelevant parties. We deny this

request because the appeal is part of the Montez class litigation. As a

result, the other parties must be included in the caption.

VII. Redaction of Medical Records

      Mr. Moore asks us to remove the redactions on the medical records

submitted by the defendants. These records proved immaterial for our

analysis; thus, we deny Mr. Moore’s request.

VIII. Mr. Moore’s Amended Opening Brief and Addendum

      Mr. Moore has filed an unauthorized “Amended Opening Brief” and a

separate “Addendum.” Both are stricken.

      After successfully requesting an extension of time, Mr. Moore filed

his opening appeal brief on July 18, 2017, and the defendants responded on

August 11, 2018. He then requested an extension of time for his optional

reply brief based in part on alleged restrictions to law library access. We

extended the deadline to September 8, 2017, for the reply brief.

      But the clerk’s office received nothing from Mr. Moore for over

three months. Then, on December 28, 2017, the clerk’s office received a

                                      8
document purporting to be an amended opening brief. In this document,

Mr. Moore stated that he was late in filing it because of restrictions on

access to research books and word processors.

      This explanation is unconvincing. In the amended brief and his

subsequent addendum, Mr. Moore purports to add multiple claims based on

numerous events post-dating the deadline for his reply brief. Allowing the

amended brief and addendum would require the defendants to respond to

the new allegations, creating even further delay.

      Mr. Moore knew that he needed to seek an extension of time, as he

has filed multiple motions for extensions. Indeed, in the last order granting

an extension of time, the clerk’s office stated that “[n]o further extensions

will be granted on the Clerk’s authority.” Order (Aug. 21, 2017).

      Because an extension of time is unwarranted, we direct the clerk to

strike the amended brief and the addendum.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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