                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        March 22, 2013
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                     TENTH CIRCUIT



 MAYA RODRIGUEZ,

           Plaintiff-Appellant,
 v.                                                            No. 12-1494
 STATE OF COLORADO,                                  (D.C. No. 1:12-CV-02216-LTB)
                                                                (D. Colo.)
           Defendant-Appellee.



                                  ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, ANDERSON and TYMKOVICH, Circuit Judges.



       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,

submitted without oral argument.

       Plaintiff Maya Rodriguez filed a pro se complaint against the State of Colorado

alleging, as determined by the district court, violations of Section 504 of the



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
Rehabilitation Act of 1973, 29 U.S.C. § 794, and a deprivation of her constitutional rights

pursuant to 42 U.S.C. § 1983. Exercising its authority under Fed. R. Civ. Proc. 41(b), the

district court sua sponte dismissed the complaint for failure to comply with Fed. R. Civ.

Proc. 8. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for

proceedings consistent with this order.

       “We review dismissals under Rule 41(b) for abuse of discretion.” Nasious v. Two

Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1161

(10th Cir. 2007). “But what we consider compliant with this standard depends in great

measure on the nature of the district court’s dismissal—that is, whether the dismissal was

ordered with or without prejudice to subsequent attempts at amendment.” Id. at 1161-62.

If a district court dismisses a case without prejudice, it need not follow any specific

procedure because the plaintiff retains the ability to refile his or her case. Id. at 1162. If a

district court dismisses a case with prejudice, though, “it must first consider certain

criteria.” Id. “[T]hese criteria include (1) the degree of actual prejudice to the defendant;

(2) the amount of interference with the judicial process; (3) the culpability of the litigant;

(4) whether the court warned the party in advance that dismissal of the action would be a

likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.”

Id. (quotation omitted).

       The district court here dismissed Rodriguez’s case without prejudice after

Rodriguez failed to comply with Fed. R. Civ. P. 8. Specifically, the district court held

that Rodriguez’s amended complaints did not “set forth a short and plain notice of her

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claims showing that she is entitled to relief.” Dist. Ct. Op. at 2; see Fed. R. Civ. P.

8(a)(2). Thus, the complaints did “not provide enough information to inform the Court or

the Defendants about the factual basis of the claims.” Dist. Ct. Op. at 2-3. Rodriguez

filed the amended complaints after a magistrate judge had issued an order saying her

claims would be dismissed if they were not corrected in accordance with Fed. R. Civ. P.

8.

       This dismissal without prejudice would normally merit our applying the most

deferential abuse of discretion standard. However, we treat a dismissal without prejudice

as a dismissal with prejudice when the statute of limitations has run on the claims.

Gocolay v. N.M. Fed. Sav. & Loan Ass’n, 968 F.2d 1017, 1021 (10th Cir. 1992)

(“Although the district court dismissed Mr. Gocolay’s claim without prejudice, New

Mexico Federal concedes the dismissal was, for all practical purposes, a dismissal with

prejudice because the statute of limitations had expired on all Mr. Gocolay’s claims.”).

This is because “[d]ismissal under circumstances that defeat altogether a litigant’s right to

redress grievances in the courts is a severe sanction, applicable only in the extreme

circumstances and should be used as a weapon of last, rather than first, resort.” Id.

(quotations omitted). We must therefore examine whether the statute of limitations has

arguably run on Rodriguez’s claims. See Boazman v. Economics Lab., Inc., 537 F.2d

210, 213 (5th Cir. 1974) (“[W]here the dismissal is without prejudice, but the applicable

statute of limitations probably bars further litigation, the standard of review of the District

Court’s dismissal should be the same as is used when reviewing a dismissal with

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prejudice.”).

       The statute of limitations for 42 U.S.C. § 1983 and 29 U.S.C. § 794 claims brought

in Colorado is two years from the time the cause of action accrued. See Fogle v. Pierson,

435 F.3d 1252, 1258 (10th Cir. 2006) (two-year statute of limitations applies to 42 U.S.C.

§ 1983 claims brought in Colorado); Baker v. Bd. of Regents, 991 F.2d 628, 631-32 (10th

Cir. 1993) (holding statute of limitations for 29 U.S.C. § 794 claim same as statute of

limitations for 42 U.S.C. § 1983 claim). Rodriguez alleges these violations occurred at

some point in 2010. ROA Vol I. at 69-71. The district court should have considered that

the two-year statute of limitations may have expired between the filing and the dismissal

of the complaint.1 Its failure to do so means that, were we to affirm the dismissal without

prejudice, we would nonetheless almost certainly be putting an end to Rodriguez’s case.

We do not believe it would be appropriate to affirm without the district court having

considered that Rodriguez had no notice of the potential consequence of filing a deficient

amended complaint.2 Cf. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)

(“We join those circuits that have declined to apply the waiver rule to a pro se’s litigant’s

failure to object when the magistrate’s order does not apprise the pro se litigant of the

consequences of a failure to object to the findings and recommendations.”); Hall v.

       1
         This is not, however, to say that some of these claims will not be time barred.
Rodriguez filed her complaint on August 20, 2012. The statute of limitations may have
run then on claims that accrued before August 20, 2010.
       2
          The order of the magistrate judge warned that the complaint would be dismissed
if not properly amended. But as discussed above, a dismissal without prejudice would not
normally bar a plaintiff from refiling his or her complaint.

                                              4
Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (“Furthermore, district courts must take

care to insure that pro se litigants are provided with proper notice regarding complex

procedural issues involved in summary judgment proceedings.”) (quotation and italics

omitted).

       We therefore REVERSE and REMAND for further proceedings, and Rodriguez’s

motion to appeal in forma pauperis is GRANTED.3 We express no opinion regarding

whether the district court should nonetheless dismiss the case even though Rodriguez may

be time barred from raising the claims in the future. We simply direct the district court to

consider the potential consequences of dismissing the case in light of the factors set forth

in Nasious.


                                           Entered for the Court


                                           Mary Beck Briscoe
                                           Chief Judge




       3
          Our resolution of the in forma pauperis issue rests upon a comparison of the
forms used in each of our respective courts. The district court denied Rodriguez’s motion
to proceed IFP on appeal in part because her financial form was not notarized. Her
motion in the appellate court also lacks notarization. However, the standard form we
provide to litigants does not appear to make any mention of requiring notarization, unlike
the district court form, which specifically has a space where the document is to be
notarized.

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