United States District Court, D. New Mexico
Christopher Scott Dangim Central New Mexico Correctional
Facility Los Lunas, New Mexico Plaintiff Pro Se
MEMORANDUM OPINION AND ORDER GRANTING THE
PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL
AND CONSTRUING PLAINTIFF'S MOTION AS A NOTICE OF
matter comes before the Court on the Plaintiff's Motion
for Leave to Proceed on Appeal Without Prepayment of Costs
and Fees, filed September 1, 2017 (Doc.
28)(“Motion”). Christopher Scott Dangim
originally filed the Motion in the United States Court of
Appeals for the Tenth Circuit on September 1, 2017, and the
Tenth Circuit forwarded Dangim's Motion to this Court.
For the reasons explained below, the Court will grant
Dangim's permission to proceed in forma pauperis on
appeal pursuant to 28 U.S.C. § 1915 and construe
Dangim's Motion as a Notice of Appeal of the Court's
Memorandum Opinion and Order of Dismissal, filed August 23,
2017 (Doc. 26), and Final Judgment, filed August 23, 2017
was granted permission to proceed in forma pauperis in the
District Court pursuant to 28 U.S.C. § 1915.
See Order Quashing Order to Show Cause, Granting
Leave to Proceed Pursuant to 28 U.S.C. § 1915, and
Denying Motion to Disqualify, filed August 22, 2016 (Doc.
13). Rule 24(a)(3) of the Rules of Appellate Procedure
provide that “[a] party who was permitted to proceed in
forma pauperis in the district-court action . . . may proceed
on appeal in forma pauperis without further
authorization” provided that the appeal is taken in
good faith. Fed. R. App. P. 24(a)(3). The Court concludes
that Dangim has a good-faith basis to file an appeal from the
Court's MOO and Final Judgment and, therefore, will grant
has not filed a notice of appeal, but he timely filed the
present motion for leave to proceed in forma pauperis on
appeal within the time permitted to file a notice of appeal
under rule 4 of the Rules of Appellate Procedure.
See Fed. R. App. P. 4(a)(1)(A) (providing that a
notice of appeal “must be filed with the district clerk
within 30 days after entry of the judgment or order appealed
from”). “[T]he timely filing of a notice of
appeal in a civil case is a jurisdictional requirement,
” Bowles v. Russell, 551 U.S. 205, 214 (2007),
but the Court may liberally construe a pro se pleading as the
functional equivalent of a notice of appeal if it is
“filed within the time specified by Rule 4 [and] gives
the notice required by Rule 3” of the Appellate Rules
of Appellate Procedure, Smith v. Barry, 502 U.S.
244, 249 (1992). Rule 3 provides that the notice of appeal
must: (1) “specify the party or parties taking the
appeal by naming each one in the caption or body of the
notice”; (2) “designate the judgment, order, or
part thereof being appealed”; and (3) “name the
court to which the appeal is taken.” Fed. R. App. P.
3(c)(1)(A)-(C). “Courts will liberally construe the
requirements of Rule 3.” Smith v. Barry, 502
U.S. at 248. “Thus, when papers are ‘technically
at variance with the letter of [rule 3], a court may
nonetheless find that the litigant has complied with the rule
if the litigant's action is the functional equivalent of
what the rule requires.” Smith v. Barry, 502
U.S. at 248 (quoting Torres v. Oakland Scavenger
Co., 487 U.S. 312, 316-17 (1988)).
Motion satisfies rule 3's first requirement, because it
specifies the party taking the appeal by naming the party in
the caption of his Motion. However, “[f]ailure to
comply with the other two elements is not necessarily
fatal” if “the petitioner's intent can be
fairly inferred.” United States v. Villarreal,
351 Fed.Appx. 332, 333 (10th Cir.
2009)(unpublished). Given that Dangim filed his Motion only
nine days after the Court dismissed his Amended Complaint for
Violation of Civil Rights, filed July 6, 2017 (Doc. 22), and
the entry of Final Judgment, it can be fairly inferred that
Dangim is appealing from the Court's MOO. See United
States v. Villarreal, 351 Fed.Appx. at 333 (holding that
the petitioner's pro se filing was the functional
equivalent of a notice of appeal from the “only . . .
substantive order that Mr. Villareal could have been
appealing: the denial of his § 2255 motion”).
See Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th
Cir. 2007)(holding that the petitioner's combined
“motion for leave to proceed on appeal without
prepayment of costs or fees and application for certificate
of appealability” was the “‘functional
equivalent' of a formal notice of appeal” (quoting
Smith v. Barry, 502 U.S. 244, 248 (1992)));
Faircloth v. Raemisch, No. 17-1078, 2017 WL 2260929,
at *3-4 (10th Cir. May 23, 2017)(unpublished)(construing the
petitioner's motion to proceed on appeal in forma
pauperis as a notice of appeal from “the denials of his
§ 2254 motion and his Rule 59(e) motion to
amend”). Additionally, because Dangim mailed his Motion
to the Tenth Circuit, it can be fairly inferred that Dangim
is appealing to the Tenth Circuit. See Graves v. General
Ins. Corp., 381 F.2d 517, 519 (10th Cir. 1967)(holding
that “a defective notice of appeal should not warrant
dismissal for want of jurisdiction where the intention to
appeal to a certain court of appeals may be reasonably
inferred from the notice, and where the defect has not
materially misled the appellee”); Faircloth v.
Raemisch, 2017 WL 2260929, at *4 (“Here, Mr.
Faircloth's sole avenue to appeal the denials of his
§ 2254 motion and motion to amend is through this court,
and as a result it may be reasonably inferred that his appeal
was taken to this court.”). The courts, therefore,
liberally construe Dangim's Motion as the functional
equivalent of a notice of appeal.
IS ORDERED that Plaintiff's Motion for Leave to
Proceed on Appeal Without Prepayment of Costs and Fees, filed
September 1, 2017 (Doc. 28) is granted.
United States v. Villarreal is
an unpublished opinion, but the Court can rely on an
unpublished opinion to the extent its reasoned analysis is
persuasive in the case before it. See 10th Cir. R.
32.1(A) (“Unpublished opinions are not precedential,
but may be cited for their persuasive value”). The
Tenth Circuit has stated: “In this circuit, unpublished
orders are not binding precedent, . . . and . . . citation to
unpublished opinions is not favored . . . . However, if an
unpublished opinion . . . has persuasive value with respect
to a material issue in a case and would assist the court in
its disposition, we allow a citation to that decision.”
United States v. Austin. 426 F.3d 1266, 1274 (10th
Cir.2005). The Court concludes that United States v.
Villarreal and Faircloth v. Raemisch, No.