FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALSNovember 3, 2011
                                                                Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                   Clerk of Court



    DAN HENRY TIJERINA, SR.,

                Plaintiff-Appellant,

    v.                                                   No. 11-4037
                                                 (D.C. No. 2:10-CV-00529-TS)
    TOM PATTERSON; DEPARTMENT                              (D. Utah)
    OF CORRECTIONS MEDICAL
    DEPARTMENT; CO-PAY
    SERVICES; CLINICAL SERVICES
    BUREAU; UTAH DEPARTMENT OF
    CORRECTIONS,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.


         Dan Henry Tijerina, Sr., a prisoner proceeding pro se, appeals the dismissal

of his 42 U.S.C. § 1983 civil rights complaint for failure to comply with the

district court’s order and failure to prosecute. Because defendants concede that


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
the district court’s dismissal contravened the “prison mailbox rule,” see Houston

v. Lack, 

, 276 (1988), we reverse and remand for further

proceedings.

      Mr. Tijerina filed his complaint in Utah state district court on March 12,

2010. The complaint alleged that he was an inmate at the Utah State Prison in

Draper, Utah. It charged that the defendants, who are prison officials and

entities, violated his state and federal constitutional rights by forcing him to pay

medical co-payments from his prison account. Mr. Tijerina further alleged that

the mandatory co-payments forced him to choose between medical care and

hygiene items.

      On June 7, 2010, the defendants removed the case to the United States

District Court for the District of Utah. On June 29, 2010, they filed a motion to

dismiss, arguing that their actions did not violate either the Utah or United States

Constitutions. Mr. Tijerina filed a response to the motion to dismiss. The

defendants replied with a two-page pleading in which they asserted that in his

response, Mr. Tijerina had “not raised any factual or legal arguments that require

a response[.]” R., Vol. I at 150.

      On October 4, 2010, Mr. Tijerina filed two further documents: a letter to

the district court and a motion to compel discovery. Nothing further happened in

the case until five months later, when the district court entered an order dated




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January 10, 2011, denying the motion to compel discovery and ordering

Mr. Tijerina to file a second response to the motion to dismiss within thirty days.

      Thirty-two days later, on February 11, 2011, the district court signed a

Memorandum Decision and Dismissal Order dismissing Mr. Tijerina’s complaint

“for failure to comply with the Court’s order and failure to prosecute.” 

The order noted that Mr. Tijerina had “not complied” with the court’s previous

order requiring a second response, and that the district court had “not heard from

[him] since August 4, 2010, when he filed a letter and a motion to compel

discovery.” 

order was entered on the district court’s docket on

February 14, 2011.

      Also entered on February 14 was Mr. Tijerina’s second response to the

defendants’ motion to dismiss, the very document whose absence resulted in the

dismissal of his complaint. Mr. Tijerina’s response had actually been file-

stamped by the clerk three days earlier, on February 11, 2011, but it was not

entered on the docket until February 14. A clerk’s judgment dismissing the

complaint for failure to prosecute was filed on February 14 and entered on the

docket on February 15.

      The certificate of service accompanying Mr. Tijerina’s second response

stated that he had “mailed a true and correct copy of the foregoing court ordered

motion to response to defendants motion to dismiss in the first class mail postage

prepaid to the following[.]” 

He identified the Assistant Utah Attorney

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General as the recipient. Although the certificate of service did not specify a

mailing date, it stated that the pleading was “respectfully submitted this 9th day

of February, 2011[.]” 

original).

      The district court did not enter any further orders concerning Mr. Tijerina’s

second response. He has now timely appealed from the judgment dismissing his

complaint. “We review for an abuse of discretion an order dismissing an action

for failure to prosecute.” AdvantEdge Bus. Grp. v. Thomas E. Mestmaker &

Assocs., Inc., 

, 1236 (10th Cir. 2009).

      In their brief, the defendants (appearing collectively as the Utah

Department of Corrections, or “UDOC”) “concede that Tijerina’s response was

timely filed under the ‘prison mailbox rule,’ and the case should not have been

dismissed on procedural grounds.” Aplee. Br. at 3. “The prison mailbox rule, as

articulated by the Supreme Court in Houston v. Lack, 

, 276 [(1988)],

holds that a pro se prisoner’s notice of appeal will be considered timely if given

to prison officials for mailing prior to the filing deadline, regardless of when the

court itself receives the documents.” Price v. Philpot, 

, 1163-64

(10th Cir. 2005). This court has long applied the prison mailbox rule in contexts

beyond the filing of a notice of appeal. See 

(noting “the clear

consensus among the circuits is that the mailbox rule also applies to inmate

42 U.S.C. § 1983 filings”); Dunn v. White, 

, 1190 (10th Cir. 1989)




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(per curiam) (applying the prison mailbox rule to objections to a magistrate

judge’s report).

      If the prison has a legal mail system, the prisoner can establish the date on

which he provided the papers to be filed with the court by presenting evidence

showing the date on which he deposited the mailing into that system. See 

. Here, the certificate of service attached to Mr. Tijerina’s

second response to defendants’ motion to dismiss did not recite that he placed the

pleading in the prison legal mail on or before the deadline. See R., Vol. I at 172.

Thus, his pleading, standing alone, failed to satisfy his burden under the prison

mailbox rule.

      To his opening brief in this court, however, Mr. Tijerina attached an

unsigned log of “incoming and outgoing privileged correspondence,” indicating

that letters from him to the Utah Attorney General and the United States District

Court were logged in the prison’s legal mail system on February 10, 2011. Aplt.

Opening Br., Att. 1. In view of this fact and the other facts and circumstances

here (the fact that the district court received and file-stamped his pleading on

February 11, 2011, two days after he claims he deposited it into the prison’s legal

mail system and a day after it was logged in, as well as UDOC’s concession that

the prison mailbox rule was satisfied), we conclude that Mr. Tijerina has made a

sufficient showing that his response was timely filed. The district court therefore

abused its discretion in dismissing the complaint for failure to prosecute and for

                                         -5-
failure to comply with its previous order requiring Mr. Tijerina to file a response

with thirty days.

       The defendants urge us to affirm the order of dismissal on an alternative

basis: that the complaint fails to state a claim. We decline their invitation.

Currently, the district court has made no ruling concerning the adequacy of

Mr. Tijerina’s complaint or, if inadequate, whether it can be amended to state a

claim. These are matters best considered by the district court in the first

instance. 1

       The judgment of the district court dismissing Mr. Tijerina’s complaint is

therefore REVERSED and the case is REMANDED for further proceedings in

accordance with this order and judgment. His motion to proceed in forma

pauperis on appeal is GRANTED.


                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




1
       Similarly, Mr. Tijerina’s request for injunctive relief to compel the prison
to provide him with additional writing paper, see Aplt. Br. at 24, is best addressed
to the district court in the first instance.

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