Wells v. Dean ( 2003 )

  •                                                                          F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              OCT 23 2003
                             FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
        v.                                                 No. 02-1510
                                                   (D.C. No. 01-RB-1989 (OES))
        JOHN D. DEAN; GREGORY C.                             (D. Colo.)
                              ORDER AND JUDGMENT            *
    Before MURPHY and PORFILIO , Circuit Judges, and            BRORBY , Senior Circuit
          This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
          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.
          Plaintiff Clarissa Wells, proceeding pro se, appeals the district court’s
    order dismissing her case in which she sought damages for injuries she sustained
    while being improperly ejected from her place of employment with the federal
    government. This court granted her request to proceed on appeal without
    prepayment of costs and fees. We exercise jurisdiction under 28 U.S.C. § 1291,
    and affirm.
          Ms. Wells was a civilian employee of the Department of the Army. She
    was assigned a work location in office space leased from defendant Sherman
    Street Properties, Inc. (Sherman Street), and managed by defendant Caldwell. In
    late September of 2000, defendant Kellar informed Ms. Wells that her
    employment would be terminated on October 7, 2000. She immediately took
    administrative leave until October 4, 2000, when she appeared at her office to
    complete her notice period. Shortly after she arrived, she was asked to leave and
    when she refused, she was forcibly removed. She alleges that defendants Preskitt
    and Garcia tried to intimidate and threaten her to get her to leave, but when that
    did not work, they directed defendants Dean and Sheets to remove her. A
    struggle ensued during which she alleges she was seriously injured. Defendant
    Caldwell, the property manager, was present during the scuffle. Ms. Wells filed
    suit based on this incident, claiming all defendants injured her and violated her
    constitutional rights, and that they had conspired to do so.
          The case was referred to a magistrate judge, who recommended granting
    the defendants’ motions to dismiss. The district court adopted the
    recommendation and dismissed all claims with prejudice.
          All of the defendants, except Sherman Street and Caldwell, are employees,
    officials or agencies of the United States government; they will be referred to as
    the “federal defendants.” Sherman Street and Caldwell will be referred to by
    name or as the “civilian defendants.”
                                PRELIMINARY MATTERS
          We must first determine whether this court has jurisdiction over the appeal.
    Ms. Wells did not file a notice of appeal within sixty days after the final order
    was entered on November 29, 2002, as required by Rule 4(a)(1)(B) of the Federal
    Rules of Appellate Procedure to invoke appellate jurisdiction. She did, however,
    file a motion to proceed in forma pauperis within the required time, which may
    serve as the functional equivalent of a notice of appeal.   See Smith v. Barry ,
    502 U.S. 244
    , 248-49 (1992) (holding an appellate brief filed within the allotted
    time can be the functional equivalent of a notice of appeal). We construe
    Ms. Wells’ motion to proceed in forma pauperis as a notice of appeal and exercise
    jurisdiction over this appeal.   See Hoover v. United States , 
    268 F.2d 787
    , 789
    (10th Cir. 1959) (construing timely-filed motion to proceed on appeal in forma
    pauperis as notice of appeal);   see also Knox v. Wyoming , 
    959 F.2d 866
    , 868 n.1
    (10th Cir. 1992) (restating rule from    Hoover ).
                   Failure to Object to Magistrate Judge’s Recommendation
           Next we consider whether Ms. Wells waived her right to appeal the
    judgment by failing to object to the magistrate judge’s recommendation, as
    provided by 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil
    Procedure. “Failure of a plaintiff to object to a magistrate judge’s
    recommendations results in a waiver of appellate review. This remains true for
    pro se litigants if the plaintiff was properly informed of the consequences of [her]
    failure to object.”   Fottler v. United States , 
    73 F.3d 1064
    , 1065 (10th Cir. 1996)
    (citation omitted). Here, however, it is not clear that Ms. Wells was informed that
    failing to file objections would result in a waiver of appellate review. Although
    the magistrate judge’s recommendation indicates that the necessary advisement
    was attached, the record contains no such advisement.       See Moore v. United
    States , 
    950 F.2d 656
    , 659 (10th Cir. 1991) (“This notice should be included in the
    text of the document containing the magistrate’s findings and
    recommendations.”). Accordingly, because the record does not demonstrate that
    Ms. Wells was properly informed of the consequences of her failure to object, we
    decline to apply the “firm waiver rule,” and we proceed to the merits.    Cf. Theede
    v. United States Dep’t of Labor     , 
    172 F.3d 1262
    , 1267-68 (10th Cir. 1999)
    (applying “firm waiver rule”).
           Ms. Wells alleged the following claims for relief: (1) conspiracy to violate
    her constitutional rights, (2) use of excessive and unreasonable force, (3) assault,
    (4) battery, (5) outrageous conduct, and (6) negligence.
                                        Standard of Review
           The defendants’ motions to dismiss were based on Fed. R. Civ. P. 12(b)(1)
    and (6), alleging lack of subject-matter jurisdiction and failure to state a claim
    upon which relief can be granted.      “We review de novo the district court’s
    dismissal for lack of subject-matter jurisdiction.” Owen v. Magaw, 
    122 F.3d 1350
    , 1352 (10th Cir. 1997). Our review of an order of dismissal for failure to
    state a claim also is de novo. See Witt v. Roadway Express, 
    136 F.3d 1424
    , 1431
    (10th Cir. 1998). Because plaintiff is representing herself on appeal, her
    pleadings will be liberally construed. Haines v. Kerner, 
    404 U.S. 519
    , 520
                              Claims Against Federal Defendants
           The magistrate judge issued a careful and thorough recommendation for
    dismissal, addressing each of Ms. Wells’ claims against the federal defendants,
    and concluding that she was not entitled to relief on any of them.   We have
    carefully reviewed the record on appeal, as well as the briefs submitted by the
    parties. Applying the standards set out above, we affirm the dismissal of
    Ms. Wells’ claims against the federal defendants for the same reasons stated by
    the magistrate judge, and adopted by the district court.
                              Claims Against Civilian Defendants
           Ms. Wells alleged that Sherman Street and Caldwell were vicariously
    responsible for the acts of the federal defendants because Sherman Street owned
    and managed the real property where the incident occurred and Caldwell was
    employed by Sherman Street. Ms. Wells also argued that Caldwell had a duty to
    intervene in the incident.
           Ms. Wells did not oppose the motion to dismiss filed by Sherman Street and
    Caldwell. Therefore, we deem her claims against Sherman Street and Caldwell
    abandoned in the district court and we decline to consider them.     O’Connor v.
    City & County of Denver , 
    894 F.2d 1210
    , 1214 (10th Cir. 1990). Even if we were
    to address them, however, we would hold that these non-governmental defendants
    are not liable for federal civil rights violations.   See Sigmon v. CommunityCare
    HMO, Inc. , 
    234 F.3d 1121
    , 1126 (10th Cir. 2000) (holding that allegation of state
    action based on a conspiracy theory requires specific facts showing agreement and
    concerted action by both public and private actors). As for her state-law claims,
    Ms. Wells has not identified a recognized duty on the part of either of the civilian
    defendants to intercede in the actions of the federal defendants.     Cf. Lego v.
    Schmidt , 
    805 P.2d 1119
    , 1122 (Colo. Ct. App. 1990) (recognizing that
    circumstances in which a failure to act leads to liability are limited). Moreover,
    Ms. Wells’ allegations are insufficient for a claim of outrageous conduct.     See
    Bohrer v. DeHart , 
    943 P.2d 1220
    , 1224 (Colo. Ct. App. 1996) (holding
    outrageous conduct claim requires evidence that defendants’ actions were “so
    outrageous in character and so extreme in degree as to go beyond all possible
    bounds of decency and to be regarded as atrocious and utterly intolerable in a
    civilized community,” and that defendants “intentionally caused severe emotional
    distress”). We conclude that the district court properly granted Sherman Street
    and Caldwell’s motion to dismiss with prejudice.
          Ms. Wells’ motion for a gag order and concealment of release of
    information is denied. The judgment of the district court is AFFIRMED. The
    mandate shall issue forthwith.
                                                     Entered for the Court
                                                     Wade Brorby
                                                     Senior Circuit Judge