Seeley v. Crews
CourtCourt of Appeals for the Tenth Circuit
Date FiledOctober 23, 2026
Docket26-1266
StatusUnpublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
Appellate Case: 26-1266 Document: 24-1 Date Filed: 10/23/2026 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 23, 2026
_________________________________
Christopher M. Wolpert
Clerk of Court
CLARENCE WAYNE SEELEY, III,
Plaintiff - Appellant,
v. No. 26-1266
(D.C. No. 1:26-CV-00029-LTB-RTG)
DEPUTY STEPHEN CREWS, State (D. Colo.)
Official,
Defendant - Appellee.
_________________________________
ORDER ON PANEL REHEARING *
_________________________________
Before PHILLIPS, KELLY, and FEDERICO, Circuit Judges.
_________________________________
Clarence Seeley III, proceeding pro se, appealed the dismissal of his
42 U.S.C. § 1983 lawsuit against a prison guard. 1 The district court sua sponte
dismissed the suit under Federal Rule of Civil Procedure 41(b) for failure to
comply with Rule 8’s pleading requirements. In Seeley v. Crews (Seeley III),
No. 26-1266, 2026 WL 2546831 (10th Cir. Aug. 28, 2026) (unpublished), we
This order is not binding precedent except under the doctrines of law of
*
the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
Because Seeley proceeds pro se, we liberally construe his arguments but
1
do not act as his advocate. See Greer v. Moon, 83 F.4th 1283, 1292 (10th Cir.
2023).
Appellate Case: 26-1266 Document: 24-1 Date Filed: 10/23/2026 Page: 2
affirmed, concluding Seeley had waived appellate review by failing to object to
the magistrate judge’s recommendation.
Seeley has now filed a document entitled “New Evidence Provided.” We
construe this document as a timely petition for panel rehearing. Exercising
jurisdiction under 28 U.S.C. § 1291, we grant the petition, vacate our original
order and judgment, and remand for the district court’s reconsideration.
BACKGROUND
Seeley is incarcerated at Sterling Correctional Facility in Sterling,
Colorado. According to his complaint, a corrections officer, Stephen Crews,
intentionally left open Seeley’s cell door so racist inmates could attack him.
Seeley sued Crews under § 1983 for violating his Eighth and Fourteenth
Amendment rights. He sought three million dollars in compensatory damages,
punitive damages, and an injunction.
A magistrate judge reviewed Seeley’s complaint under 28 U.S.C. § 1915.
Concluding that the complaint failed to comply with Rule 8 of the Federal
Rules of Civil Procedure, the magistrate judge provided Seeley 30 days in
which to file an amended complaint stating plausible claims. Over 60 days
later, Seeley had still not filed an amended complaint. The magistrate judge
recommended that the district court dismiss Seeley’s claims under Rule 41(b)
for failure to comply with Rule 8. Seeley v. Crews (Seeley I), No. 26-cv-00029,
2026 WL 2582155, at *1–2 (D. Colo. May 26, 2026).
2
Appellate Case: 26-1266 Document: 24-1 Date Filed: 10/23/2026 Page: 3
The magistrate judge advised Seeley that he would waive review of the
recommendation unless he filed an objection within fourteen days. Seeley I,
2026 WL 2582155, at *1 n.1. The district court received no objections, so it
adopted the magistrate judge’s recommendation and dismissed Seeley’s action
without prejudice. Seeley v. Crews (Seeley II), No. 26-cv-00029,
2026 WL 2582153, at *1 (D. Colo. June 23, 2026).
Seeley filed a timely notice of appeal. He argued that his complaint had,
in fact, complied with Rule 8. And he insisted he had filed his objection to the
magistrate judge’s recommendations within the allotted time by mailing it
through the prison’s legal mail system within the required fourteen days.
In our previous order, we noted that Seeley had failed to support with any
documentation his claim that he had filed his objection within the fourteen-day
deadline. Seeley III, 2026 WL 2546831, at *2. So we applied the firm waiver
rule and affirmed the district court. Id. at *1–2.
Less than fourteen days later, Seeley filed the document that we construe
as a petition for panel rehearing. Because the petition was timely filed, the
panel now considers it. See Fed. R. App. P. 40(d)(1).
DISCUSSION
I. Petition for Panel Rehearing
As we construe Seeley’s filing, he asks us to reconsider our original
decision barring his appeal under the firm waiver rule. Seeley III,
2026 WL 2546831, at *1–2. Ordinarily, a party waives appellate review of a
3
Appellate Case: 26-1266 Document: 24-1 Date Filed: 10/23/2026 Page: 4
magistrate judge’s recommendations by failing to timely object. E.g., United
States v. One Parcel of Real Prop., 73 F.3d 1057, 1059–60 (10th Cir. 1996)
(citations omitted).
Seeley has consistently maintained that he mailed objections to the
magistrate judge’s recommendations within the fourteen-day deadline, which
expired on June 12, 2026. Seeley III, 2026 WL 2546831, at *2. He renews this
argument in his petition, claiming he mailed his objection and an amended
complaint to the district court on June 9. We rejected this argument in our
original decision on grounds that Seeley had not provided supporting evidence.
Id.; see also Price v. Philpot, 420 F.3d 1158, 1165–66 (10th Cir. 2005)
(citation omitted) (inmate bears the burden of proof on question of whether his
filing is timely). Because we could not verify his claim, “we [couldn’t] say
whether he [had] tried to comply” with the objection deadline. Seeley III, 2026
WL 2546831, at *2 (citing Nasious v. Robinson, 396 F. App’x 526, 529 (10th
Cir. 2010)).
But with his filing seeking rehearing, Seeley has attached a copy from the
prison’s “Restricted Inspection Mail Log.” The log shows that Seeley mailed
something to the district court on June 9, 2026. The entry bears a stamp from
the prison’s mail room stating the mail was sent that day. Further, on July 30,
the district court received an amended complaint and an objection to the
magistrate judge’s report—the two documents Seeley claims were mailed on
June 9. Only one of those two filings—the amended complaint—was scanned
4
Appellate Case: 26-1266 Document: 24-1 Date Filed: 10/23/2026 Page: 5
into the district court’s docket with an envelope. The envelope was postmarked
June 11, 2026 (one day before the deadline).
Under the prison-mailbox rule, certain filings by pro se prisoners are
considered timely “if given to prison officials for mailing prior to the filing
deadline, regardless of when the court itself receives the documents.” Price,
420 F.3d at 1163–64 (citing Houston v. Lack, 487 U.S. 266, 276 (1988)). We
have applied this rule to objections to magistrate judge recommendations. Id. at
1164 n.4 (citing Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989) (per
curiam)). Prisoners bear the burden of proof in establishing that their filings
were timely made. Id. at 1165.
If Seeley mailed his objection and amended complaint before the
deadline, he may not have waived review of the recommendation. We therefore
grant his petition for rehearing and vacate our prior judgment. 2
To resolve this appeal, we would need to determine whether Seeley has
met his burden to show timely filing of objections to the magistrate judge’s
recommendation under the prison-mailbox rule. But the district court has not
yet had an opportunity to address the question. And in light of Seeley’s attempt
to amend his complaint, our deciding the question would encroach on the
district court’s discretion under Federal Rule of Civil Procedure 15. So we
2
We grant Seeley’s IFP motion and require him to continue making
partial payments until the filing fee is paid in full. Seeley III,
2026 WL 2546831, at *2 (first citing 28 U.S.C. § 1915(b)(1)–(2); and then
citing Strope v. Cummings, 653 F.3d 1271, 1273 (10th Cir. 2011)).
5
Appellate Case: 26-1266 Document: 24-1 Date Filed: 10/23/2026 Page: 6
vacate the district court’s order and remand for it to determine whether Seeley
has met his burden and how best to proceed.
CONCLUSION
Having granted the petition for rehearing, we vacate the district court’s
order and remand the matter for its consideration.
Entered for the Court
Gregory A. Phillips
Circuit Judge
6