                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 12, 2013
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 JOSEPH JON DREISMEIER,

          Plaintiff - Appellant,

 v.                                                     No. 13-1141
                                               (D.C. No. 1:12-CV-02998-LTB)
 ROGER WERHOLTZ, Interim                                  (D. Colo.)
 Executive Director CDOC; JAMES
 FALK, Warden SCF; RICHARD
 MISCHIARA, C/O IV at SCF; C/O
 MCCORMICK, C/O III at SCF; C/O
 CONEY, C/O II at SCF; C/O
 BRUNKHARDT, C/O I at SCF;
 LARRY GRAHAM, Investigator for
 Inspector General’s Office,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, HOLMES, and MATHESON, Circuit Judges. **


      Plaintiff Joseph Dreismeier, proceeding pro se, filed a complaint pursuant


      *
        This order and judgment is not binding precedent, except under the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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
to 42 U.S.C. § 1983 against six Colorado Department of Corrections (CDOC)

employees and one federal official. The magistrate judge concluded that the

complaint was insufficient, and ordered him to file an amended complaint that

complied with the pleading requirements of Fed. R. Civ. P. 8 and alleged the

personal participation of each defendant. After he failed to do so, the court

dismissed the action without prejudice. Mr. Dreismeier now appeals from that

order of dismissal. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse

and remand.



                                    Background

      On November 14, 2012, Mr. Dreismeier filed a pro se complaint against

several individuals, including Officers Coney and Brunkhardt who worked at the

Sterling Correctional Facility. I R. 4–14. He raised five claims in his complaint

and requested money damages and injunctive relief. Id. In claims one and four,

he alleged cruel and unusual punishment, stating

      on Feb[r]uary 24, 2012, while being escorted to segregation by
      Officers Coney [and] Brunkhardt [my] pants started falling down, at
      which time c/o Brunkhardt tried to pull them up. However c/o []
      Coney told him to let them fall off. . . . He then [said] that he’s tired
      of us inmates thinking we deserve respect [and] proceeded to walk
      me past [six] male officers and [four] female officers . . . .

Id. at 8. He further alleged that “these d[e]liberate actions [were] done to

humiliate me and to cause me emotional pain.” Id. at 11. In claims two and


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three, he asserted the denial of due process and retaliation, alleging that the

CDOC “has refused to deal with these violations of my civil rights even when I

followed all administrative processes,” and that Officers Coney and Brunkhardt,

among others, have harassed him during meals. Id. at 9–10. Finally, in claim

five, he argued that he was denied equal protection of the laws. Id. at 12.

      The magistrate judge initially directed Mr. Dreismeier to cure a deficiency

in his complaint, which he did, filing an amended complaint in which the parties

named in the caption matched the parties listed in the text. Id. at 22–25. The

magistrate also granted him leave to proceed in forma pauperis (IFP). Id. at

40–42. However, on December 27, 2012, the magistrate ruled that the

      complaint fails to provide a short and plain statement of his claims in
      compliance with the pleading requirements of Rule 8 of the Federal
      Rules of Civil Procedure. The complaint is unnecessarily verbose,
      repetitive, and fails to demonstrate clearly and succinctly the
      personal participation of each named defendant . . . .

Id. at 44. The magistrate directed him to file an amended complaint within thirty

days, and further ordered that he “shall obtain the Court-approved Prisoner

Complaint form (with the assistance of his case manager or the facility’s legal

assistant) . . . and use that form in submitting the amended complaint.” Id. at 47.

On February 4, 2013, the magistrate granted him a thirty-day extension. Id. at 49.

But Mr. Dreismeier never filed a second amended complaint, and on March 18,

2013, the court dismissed the action for failure to comply with the court order and

failure to prosecute. Id. at 50–52. The court also denied IFP status on appeal.

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Id. at 51.

         Mr. Dreismeier timely filed a notice of appeal. Id. at 54. On July 1, 2013,

he submitted an opening brief and a motion for leave to proceed IFP. He also

informed the court that “[a]s of July 2nd my address will be changing . . . for I

will be leaving prison.” Mr. Dreismeier is no longer incarcerated.



                                       Discussion

         We liberally construe Mr. Dreismeier’s pro se filings. Adams ex rel.

D.J.W. v. Astrue, 659 F.3d 1297, 1302 n.1 (10th Cir. 2011). But we may not

“assume the role of advocate” and make his arguments for him. Yang v.

Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotation omitted).

         Mr. Dreismeier raises two issues in his brief: (1) that he lacks meaningful

access to the courts, and (2) that the court is acting as an advocate for the state.

Aplt. Br. 3. When liberally read in conjunction with his notice of appeal, we

understand him to be challenging the dismissal of his action, arguing that he tried

but was unable to access the necessary forms to file an amended complaint. See I

R. 54.

         We review for abuse of discretion a district court’s dismissal for failure to

comply with a court order. Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir.

2003). “[D]ismissal is an appropriate disposition against a party who disregards

court orders and fails to proceed as required by court rules.” United States ex rel.

                                           -4-
Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005).

      We are mindful that district courts are “afforded great discretion regarding .

. . control of the[ir] docket,” Garza v. Davis, 596 F.3d 1198, 1205 (10th Cir.

2010), but we find the court abused its discretion here. Mr. Dreismeier argues

that he was denied access to the necessary forms and could not comply with the

magistrate’s order. We have no reason to doubt this representation, nor any

reason to think that he purposefully ignored the court order. In fact, the record

suggests otherwise—Mr. Dreismeier had previously followed a court order to cure

a deficiency in his complaint. We also are troubled by the suggestion that

dismissal is proper when the court imposes requirements on a prisoner and the

prisoner is unable to comply. In so holding, we recognize that, because the action

was dismissed without prejudice, Mr. Dreismeier could re-file his complaint. But

we remain convinced that the action should not have been dismissed. 1

      We next turn to Mr. Dreismeier’s request for leave to proceed IFP. Mr.

Dreismeier filed an IFP application under the Prison Litigation Reform Act

(PLRA) but has since been released from prison. If we grant IFP status, we must

decide whether the PLRA applies to the request. If the PLRA applies, he should

have paid an initial partial appellate filing fee calculated according to the formula

in 28 U.S.C. § 1915(b)(1). And while he was incarcerated, he should have paid

      1
        Although we limit our review to the dismissal order, we question whether
the complaint was insufficient as to Officers Coney and Brunkhardt. From our
review, Mr. Dreismeier alleged the officers’ personal participation in the incident.

                                        -5-
additional amounts calculated pursuant to § 1915(b)(2) on the basis of his

monthly income. If the PLRA does not apply, he was entitled to proceed without

prepayment of fees under § 1915(a)(1).

      In deciding whether the PLRA applies, we ask whether the litigant was

incarcerated at the time he brings a civil action or files an appeal. Brown v.

Eppler, – F.3d –, 2013 WL 3958371, at *6–7 (10th Cir. 2013) (discussing 28

U.S.C. §§ 1915(a)(2) and 1915(b)(1)). Mr. Dreismeier satisfies both

inquiries—he was incarcerated when he filed his action and his appeal. Thus, the

PLRA applies. But he is no longer incarcerated and no longer subject to the

PLRA. Id. at *7 n.7 (citing DeBlasio v. Gilmore, 315 F.3d 396, 399 (4th Cir.

2003)). He was only subject to the PLRA from the time he filed his notice of

appeal until the time of his release from incarceration. Neither the partial

appellate filing fee nor any monthly amounts during that time period have been

paid, and thus, constitute an outstanding obligation. On remand, the court should

exercise its discretion to determine the amount of the outstanding fee obligation.

      We REVERSE and REMAND. We GRANT Mr. Dreismeier’s motion for

leave to proceed IFP, and note that he is obligated to make payments toward the

appellate filing fee.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge

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