Phan v. Red Sky Homeowners Association ( 2022 )

Appellate Case: 21-1179 Document: 010110640318 Date Filed: 02/02/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 2, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
KENT VU PHAN,
Plaintiff - Appellant,
v. No. 21-1179
(D.C. No. 1:20-CV-03624-LTB-GPG)
RED SKY HOMEOWNERS (D. Colo.)
ASSOCIATION INC.,
Defendant - Appellee.
–––––––––––––––––––––––––––––––––––
KENT VU PHAN,
Plaintiff - Appellant,
v. No. 21-1182
(D.C. No. 1:20-CV-03439-LTB-GPG)
RED SKY CONDOMINIUM HOA; (D. Colo.)
JASON LOBATO; STEPHEN
BEAUDOIN; DOUGLAS OHI,
Defendants - Appellees.
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ORDER AND JUDGMENT *
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Before McHUGH, MORITZ, and ROSSMAN, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellate Case: 21-1179 Document: 010110640318 Date Filed: 02/02/2022 Page: 2
_________________________________
Plaintiff Kent Vu Phan sued several defendants in a series of lawsuits arising
from the same set of operative facts. He has appealed the dismissal of two of those
lawsuits, and for procedural purposes we address both appeals in this order. We
affirm the district court’s dismissal of his claims in both cases.
I. Background
Mr. Phan has filed five lawsuits in federal district court, all arising from the
alleged contamination of his condominium’s crawlspace. His fourth and fifth
lawsuits are the subject of these appeals.
A. Appeal from Phan v. Red Sky Homeowners Ass’n, Inc.,
No. 20-CV-03624-LTB-GPG
In Appeal No. 21-1179, Mr. Phan challenges the dismissal of his lawsuit
against Red Sky Homeowners Association (“RSHA”). Mr. Phan alleged RSHA sent
to him a bill in the amount of $13,359.01, which he claimed violated the Protection
and Advocacy for Individuals with Mental Illness (“PAIMI”) Act, 42 U.S.C.
§§ 10801 et seq., and the Americans with Disabilities (“ADA”) Act, 42 U.S.C.
§§ 12101 et seq. He also asserted claims of racial discrimination and retaliation
under 42 U.S.C. § 1981, and a state-law claim for intentional infliction of emotional
distress.
The district court dismissed all of Mr. Phan’s claims. It held: (1) the PAIMI
Act does not provide a private cause of action to individuals; (2) private residential
condominiums are not public accommodations governed by the ADA; and
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Appellate Case: 21-1179 Document: 010110640318 Date Filed: 02/02/2022 Page: 3
(3) Mr. Phan had not set forth plausible allegations that RSHA intended to
discriminate or retaliate against him based on race. Without a basis for asserting
federal subject matter jurisdiction, the district court declined to exercise
supplemental jurisdiction over Mr. Phan’s emotional distress claim.
B. Appeal from Phan v. Red Sky Condominium HOA, et al.,
No. 20-CV-03439-LTB-GPG
In Appeal No. 21-1182, Mr. Phan challenges the dismissal of his lawsuit
asserting ADA, racial discrimination, and state-law claims against Red Sky
Condominium HOA, realtor Jason Lobato, home inspector Douglas Ohi, and
environmental specialist Stephen Beaudoin. The district court dismissed the claims
against Red Sky Condominium HOA, Mr. Lobato, and Mr. Ohi under the doctrine of
claim preclusion. The district court also held those claims were barred by the
applicable statutes of limitations. Finally, the district court held Mr. Phan’s
conclusory allegations against Mr. Beaudoin failed to satisfy the requirements of
Fed. R. Civ. P. 8(a).
II. Discussion
“Under [Fed. R. App. P.] 28, which applies equally to pro se litigants, a brief
must contain more than a generalized assertion of error, with citations to supporting
authority.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir.
2005) (ellipsis and internal quotation marks omitted). Although we review a pro se
litigant’s pleadings liberally, we will not “take on the responsibility of serving as the
litigant’s attorney in constructing arguments and searching the record.” Id. at 840.
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Therefore, any argument not clearly made in a party’s opening brief will be deemed
waived. Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012).
In both of his appeals, Mr. Phan fails to meaningfully challenge any of the
bases for the district court’s dismissals. His respective opening briefs largely
reiterate his conclusory allegations against the defendants. We therefore hold that
Mr. Phan has waived any challenge to the district court’s rulings.
III. Conclusion
We affirm the district court’s dismissals of Mr. Phan’s lawsuits. In each
appeal, Mr. Phan moved for leave to proceed in forma pauperis. We deny both
motions. See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005)
(holding that to prevail on a motion to proceed in forma pauperis, the movant must
show not only an inability to pay, but also “the existence of a reasoned, nonfrivolous
argument on the law and facts”). Mr. Phan’s pending motion to dismiss these appeals
is deficient and he has not corrected the deficiency as requested by the Court. The
motion is therefore denied.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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