Wheeler v. Sayler

                                                                                 FILED
                                                                         IN THE OFFICE OF THE
                                                                      CLERK OF SUPREME COURT
                                                                           DECEMBER 8, 2022
                                                                       STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

Leroy Wheeler,                                        Plaintiff and Appellant
      v.
James Sayler; Dave Krabbenhoft;
Robyn T. Schmalenberger; Leann K.
Bertsch; Dustin Clausen; Kelsey
Schulz; Lacey Fischer; Heather
Davis,                                             Defendants and Appellees



                                No. 20220227

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bruce A. Romanick, Judge.

DISMISSED.

Opinion of the Court by Tufte, Justice.

LeRoy K. Wheeler, self-represented, Bismarck, N.D., plaintiff and appellant;
submitted on brief.

Jane G. Sportiello, Assistant Attorney General, Bismarck, N.D., for defendants
and appellees; submitted on brief.
                               Wheeler v. Sayler
                                No. 20220227

Tufte, Justice.

[¶1] LeRoy Wheeler appeals from orders dismissing without prejudice his 

 civil rights action against prison officials and denying his request
for reconsideration. Because these orders are not appealable, we dismiss the
appeal.

                                         I

[¶2] In February 2021, Wheeler commenced this § 1983 civil rights action
against North Dakota State Penitentiary officials (“State”) in the South
Central Judicial District by serving a summons and complaint upon the State.
Wheeler did not file the summons and complaint with the district court at that
time, and has never served a notice of filing the complaint upon the State. In
March 2021, Wheeler moved for a “continuance” to extend his time to reply to
the State’s “answer,” which was served on Wheeler, but was never filed with
the court.

[¶3] In December 2021, the presiding judge of the Northeast Central Judicial
District entered a N.D. Sup. Ct. Admin. R. 58 vexatious litigant pre-filing order
against Wheeler. In Wheeler v. State, 

, 

, we
summarily affirmed the pre-filing order.

[¶4] In February 2022, eleven months after Wheeler moved for a
“continuance” in this case, the district court filed a “notice of intent to dismiss,”
stating the court’s intent to dismiss the case without prejudice on its own
motion unless a party requested, within three weeks, that the case remain
open. None of the parties responded, and the court dismissed the action
without prejudice. Wheeler requested reconsideration, alleging that he did not
receive notice of intent to dismiss. The court denied the request to reconsider.

                                         II

[¶5] The State argues the order dismissing the case without prejudice is a
non-appealable order.

                                         1
[¶6] “Generally, an order dismissing a complaint without prejudice is not
appealable.” James Vault & Precast Co. v. B&B Hot Oil Serv., Inc., 

, ¶ 10, 

. “A dismissal without prejudice may be final and
appealable, however, if the dismissal has the practical effect of terminating the
litigation in the plaintiff ’s chosen forum.” 

 “A dismissal without prejudice is
therefore appealable where a statute of limitations has run.” 

 While Wheeler
asserts the statute of limitations will bar him from refiling his claims, he does
not provide the applicable statute of limitations. Under N.D.C.C. § 28-01-22.1,
“When not otherwise specifically provided by law, an action against the state
or its employees and officials acting within the scope of their employment or
office must be commenced within three years after the claim for relief has
accrued.” Assuming without deciding this is the applicable statute of
limitations,1 Wheeler has three years to commence an action after the claim
for relief has accrued. According to the complaint, the alleged civil rights
violations occurred from September 2020 to November 2020. Thus, this statute
of limitations on his claims would not run until September 2023 at the earliest.

[¶7] Wheeler also argues his vexatious litigant pre-filing order would
effectively prevent him from refiling his case. The pre-filing order prohibits
him from “filing any new litigation or any new documents in existing litigation”
without first obtaining leave of the court. The court “may permit the filing of
new litigation or any documents in existing litigation only if it appears the
litigation or document has merit and has not been filed for the purpose of
harassment or delay.” If Wheeler fails to obtain prior written permission, the
court may dismiss the action.

[¶8] In Everett v. State, 

, 

, we concluded
that an order denying leave of court to file is akin to a dismissal without
prejudice and is not an appealable order. In dismissing the appeal, we noted
that the appellant “is not precluded from again attempting to seek and receive
approval to file a proper application in compliance with the prior order.” 

 at



1Wheeler states in his complaint that he is suing several prison officials “in and out of official capacity.”
However, none of their alleged actions are alleged to have occurred outside of their official capacities
at the prison.


                                                     2
¶ 11. Similarly, under the pre-filing order, Wheeler is not prevented from
seeking leave of the court to file a new case. The court may permit the filing if
it appears the litigation has merit and has not been filed for the purpose of
harassment or delay. Accordingly, Wheeler does not have a statutory basis to
appeal the order of dismissal without prejudice.

                                      III

[¶9] Wheeler also appealed from the order denying his request for
reconsideration. Although North Dakota law does not recognize motions to
reconsider, if properly written and argued, the district court may treat a motion
for reconsideration as a motion to alter or amend a judgment under
N.D.R.Civ.P. 59(j) or a motion for relief from a judgment under N.D.R.Civ.P.
60(b). Richardson v. Richardson, 

.

[¶10] The State contends the order denying reconsideration is not an
appealable order because Wheeler was subject to the pre-filing order when he
requested reconsideration and thus was precluded from filing any new
documents in existing litigation without first obtaining leave of the court. It is
undisputed that Wheeler did not seek leave of the court to file his request for
reconsideration. However, the district court did not reject the new filing or
otherwise require compliance with the pre-filing order. Instead, in its order
denying reconsideration, the court relied upon its previous reasoning that the
parties failed to timely file a request to keep the case open.

[¶11] As we have stated before, including in Wheeler’s previous appeal, the
district court is required to make a pre-filing determination prior to ruling on
a motion filed by a vexatious litigant. See Wheeler v. State, 

,

; Everett v. State, 

, 

; Everett v.
State, 

, 

. We state again, “If orders limiting
abusive filings are to have credibility with litigants, it is incumbent on courts
to make the required initial determinations whether a particular litigant’s
proffered papers will be filed. Without judicial adherence to our orders, we have
little reason to believe others will comply.” Wheeler, 

; Everett,

; Everett, 

. Nonetheless, we conclude as a
matter of law that Wheeler’s request for reconsideration did not satisfy the pre-

                                        3
filing order requirement that new documents filed with the court have merit
and have not been filed for the purpose of harassment or delay. Because
Wheeler could not file new documents without first obtaining leave of the court,
we treat the district court’s order denying reconsideration as a denial of a
request for leave to file. 

 A denial of leave to file is not appealable, and we
dismiss Wheeler’s appeal. Everett, 

; Everett, 

; Wheeler, 

.

                                       IV

[¶12] The appeal is dismissed.

[¶13] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




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