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 In Seeley v. Crews (Seeley III), No. 26-1266, 2026 WL 2546831 (10th Cir. Aug. 28, 2026) (unpublished), we This order is not binding precedent except under the doctrines of law of * the case, res judicata, and collateral estoppel.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