Buhendwa v. RTD , 694 F. App'x 664 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 9, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MADINA BUHENDWA,
Plaintiff - Appellant,
v. No. 17-1116
(D.C. No. 1:16-CV-03119-LTB)
REGIONAL TRANSPORTATION (D. Colo.)
DISTRICT, University Based Pass/CU
Student Bus Pass; (15) BOARD OF
DIRECTORS, in their official capacity;
JAMES A. STADLER, in his official
capacity; STEPHEN P. SCHMITZ, in his
official capacity; UNKNOWN DRIVER, in
his official capacity; BENJAMIN
NORMAN, in his official capacity; BILL
JAMES; BARBARA DEADWYLER;
ANGIE RIVERA-MULPIEDE; JEFF
WALKER; CLAUDIA FOLSKA; TOM
TOBIASSEN; GARY LASATER; KENT
BAYLEY; JUDY LUBOW; LARRY
HOY; PAUL DANIEL SOLAMO;
LORRAINE ANDERSON; NATALIE
MENTEN; BRUCE DOLTY; CHARLES
L. SISK,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument wouldn’t 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 isn’t 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. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1. .
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Madina Buhendwa, proceeding pro se,1 appeals the district court’s order
dismissing her complaint as duplicative of a previous action. We affirm.
For many years, and in multiple lawsuits, Buhendwa has unsuccessfully sought to
recover against the Regional Transportation District (RTD) for injuries she allegedly
sustained during bus accidents. See Buhendwa v. Reg’l Transp. Dist., 553 F. App’x 768,
769-70 (10th Cir. 2014) (unpublished). In 2014, we affirmed the dismissal of
Buhendwa’s first federal action because she failed to state a claim on which relief could
be granted. See id. at 771. Two months later, Buhendwa brought a new action against
RTD that presented claims identical to those in her first action.
The district court dismissed that second action, concluding that res judicata barred
Buhendwa from litigating her previously dismissed claims. Buhendwa moved for post-
judgment relief in the form of an independent action, or, alternatively, under Federal Rule
of Civil Procedure 60. Buhendwa asserted that RTD (or its counsel) had defrauded the
court in order to obtain dismissal. But before the district court ruled on that motion,
Buhendwa filed her complaint in the present action.2 The complaint is essentially
identical to her motion for post-judgment relief in the second action.
1
We liberally construe pro se pleadings. But we don’t act as an advocate for
pro se litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005).
2
While Buhendwa’s motion for post-judgment relief was pending, she also
sought a writ of mandamus from this court. We denied her petition, noting that a
direct appeal would be the appropriate vehicle for seeking our review.
2
The district court dismissed the present action, concluding that Buhendwa failed to
explain “why the current case is not duplicative of her previous case.” R. 95. Buhendwa
appeals that dismissal, 3 and we review for abuse of discretion. See Hartsel Springs
Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 985 (10th Cir. 2002).
We’ve previously held that a district court may dismiss a suit “for reasons of wise
judicial administration . . . whenever it is duplicative of a parallel action already pending
in another federal court.” Id. (alteration in original) (quoting Serlin v. Arthur Andersen &
Co., 3 F.3d 221, 223 (7th Cir. 1993)). But here, the district court didn’t expressly analyze
whether Buhendwa’s second action was “pending,” as our precedent seems to require. Id.
Nevertheless, Buhendwa doesn’t argue that the district court erred in dismissing
her action as duplicative of a non-pending parallel action. Indeed, Buhendwa fails to raise
any articulable challenge to the district court’s reasoning. See United States v. Apperson,
441 F.3d 1162, 1195 (10th Cir. 2006) (explaining that appellant “fail[ed] to offer any
detailed explanation of how the district court erred” and thus “failed to sufficiently place
[its] rulings at issue”); Garrett, 425 F.3d at 841 (noting that even pro se appellant’s brief
“must contain . . . more than a generalized assertion of error, with citations to supporting
authority” (alteration in original) (quoting Anderson v. Hardman, 241 F.3d 544, 545 (7th
Cir. 2001))). We therefore affirm.
3
We reject RTD’s assertion that Buhendwa’s appeal is untimely. RTD
wrongly bases its calculation on the district court’s initial dismissal order, rather than
on the district court’s subsequent denial of Buhendwa’s motion under Federal Rule of
Civil Procedure 59. See Fed. R. App. P. 4(a)(4)(A)(iv) (noting that time to file notice
of appeal runs from disposition of timely Rule 59 motion).
3
As a final matter, we deny Buhendwa’s motion to proceed on appeal in forma
pauperis.
Entered for the Court
Nancy L. Moritz
Circuit Judge
4