Sheriff v. Accelerated Receivables Solutions , 349 F. App'x 351 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
October 19, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ELMORE SHERIFF,
Plaintiff-Appellant,
v. No. 08-8094
(D.C. No. 1:05-CV-00279-CAB)
ACCELERATED RECEIVABLES (D. Wyo.)
SOLUTIONS; ARBY’S
RESTAURANT; DAVID
BROSTROM, for Accelerated
Receivables,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.
Plaintiff Elmore Sheriff, appearing pro se, appeals from an order of the
district court granting summary judgment to defendants Accelerated Receivables
Solutions, Inc. and David Brostrom (one of Accelerated Receivables’ attorneys)
*
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
(collectively, “ARS”), and defendant Arby’s Restaurant (“Arby’s”) in this civil
rights suit filed under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
I.
On November 14, 2003, Mr. Sheriff wrote a check for $5.25 on insufficient
funds to an Arby’s Restaurant in Riverton, Wyoming. See R., Doc. 166, at 7-8
(District Court’s November 14, 2008, Order Granting Defendants’ Motion for
Summary Judgment). The check was assigned to ARS for collection, along with
other outstanding bills from 2004 that Mr. Sheriff was alleged to owe Kinder
Morgan, Inc. See Aplee. Jt. App’x at 151-52. Pursuant to Wyo. Stat. Ann.
§ 1-1-115, a division of ARS called CheckFirst submitted a demand letter to
Mr. Sheriff to collect the unpaid check and a $30 collection fee. See Aplee.
Jt. App’x at 279. ARS also resubmitted the check, which was paid. Mr. Sheriff
verified for his own information that the check had been paid and did not respond
to the demand letter. He also did not pay the $30 dishonored check fee that
was due within thirty days of ARS’s demand letter under Wyo. Stat. Ann.
§ 1-1-115(a).
In June 2005, ARS sued Mr. Sheriff in state court for nonpayment of the
$30 collection fee, for an additional $100 statutory penalty available under
Wyo. Stat. Ann. § 1-1-115(b), and for nonpayment of the Kinder Morgan bills.
-2-
A default judgment for $378.40 1 was entered against Mr. Sheriff in that action,
Aplee. Jt. App’x at 156, a writ of garnishment was issued, id. at 158, and funds in
Mr. Sheriff’s personal checking account were attached.
Mr. Sheriff never appealed the default judgment, but he responded to the
writ of garnishment, arguing both that he had paid the check before the collection
action was filed and that the attached funds were federal social security disability
and veterans benefits exempt from garnishment. Id. at 159-60. The state court
held three hearings, but Mr. Sheriff did not attend any of them or provide
documentation the court had told him would be necessary to show that his funds
were exempt from garnishment. Id. at 193-95. The state court ruled on
February 10, 2006, that the evidence Mr. Sheriff had provided outside of the
hearings did not show that the attached funds were exempt funds, and the court
therefore ordered that the attached funds be paid to ARS. Id. at 195. ARS filed a
release and satisfaction of the default judgment a few days later.
Meanwhile, in November 2005, Mr. Sheriff filed this civil rights action for
money damages, alleging that ARS, Arby’s, the state court and its agents, and
1
An attachment to Mr. Sheriff’s brief shows that ARS sought $124.75
related to the check. We note that Wyo. Stat. Ann. § 1-1-115(b) provides to the
holder of a dishonored check a penalty of three times the face value of the check,
but not less than $100, if both the check and the collection fee were not paid
within thirty days of the demand letter. Because the check itself had been paid,
$124.75 represents the $30 collection fee and the $100 penalty for nonpayment of
the collection fee, less the $5.25 that had been paid. David Brostrom explained in
his affidavit that ARS policy was to give credit to the drawer of a dishonored
check for any amount paid. Aplee. Jt. App’x at 273 ¶ 7.
-3-
Kinder Morgan violated his constitutional rights in prosecuting the state debt
collection action. The district court dismissed the state actors based on their
absolute immunity, dismissed Kinder Morgan based on lack of proper service, and
later dismissed the action based on the Rooker-Feldman doctrine. 2 See Sheriff v.
Accelerated Receivables Solutions, Inc., 283 F. App’x 602, 605 (10th Cir. 2008)
(“Sheriff I”).
On appeal, we construed Mr. Sheriff’s complaint as asserting a claim under
42 U.S.C. § 1983 that defendants
(1) violated the First, Fourth, Fifth, and Fourteenth Amendments in
prosecuting a civil action against him for an unpaid check when the
check had already been paid; (2) violated the Fourteenth Amendment
because, in pursuing the unpaid check claim, they treated him
differently than other similarly situated persons; (3) wrongfully
garnished exempt funds from his checking account in violation of the
Fourth and the Fourteenth Amendments; and (4) violated his right to
privacy.
Sheriff I, 283 F. App’x at 605. We affirmed the dismissal of the state actors
and Kinder Morgan, but we reversed the dismissal of the action under
Rooker-Feldman and remanded the case to the district court. See id. at 608-09.
On remand, Mr. Sheriff moved for summary judgment, filed four motions
for a change of venue from Cheyenne to Casper so that his drive to court
proceedings would be shorter to accommodate his physical disabilities or his
poverty, and challenged the validity of Wyo. Stat. Ann. § 1-1-115. ARS and
2
D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid.
Trust Co., 263 U.S. 413 (1923).
-4-
Arby’s moved to dismiss or for summary judgment, arguing that Mr. Sheriff’s
claims were barred by the doctrines of res judicata and collateral estoppel and
that, even if his claims were not barred, ARS and Arby’s were entitled to
summary judgment on the undisputed evidence.
The district court held a hearing on the pending motions on October 30,
2008, but Mr. Sheriff did not appear, either in person or by telephone. See Supp.
R. at 21. On November 14, 2008, the court issued its written order granting
summary judgment to ARS and Arby’s and denying Mr. Sheriff’s motions.
R., Doc. 166. The court thoroughly reviewed the law applicable to res judicata
(both claim preclusion and issue preclusion), including the rule that res judicata
bars not only issues that were actually litigated in a prior action, but also issues
that could have been raised in the earlier proceeding. Id. at 4-7. The court
explained that Mr. Sheriff’s federal claims either were raised in the state court
action or could have been raised in the state court action and were therefore
barred by res judicata. Id. at 6-7; see also Strickland v. City of Albuquerque,
130 F.3d 1408, 1412-13 & n.4 (10th Cir. 1997) (noting that state courts have
subject matter jurisdiction over federal constitutional claims raised under
42 U.S.C. § 1983 and that their review of such claims is not limited).
The district court also explained that even if Mr. Sheriff’s federal claims
were not barred by res judicata, ARS was nevertheless entitled to summary
judgment. The court reasoned that the undisputed evidence showed that
-5-
Mr. Sheriff’s check was dishonored; that he did not pay ARS the dishonored
check fee required by Wyoming law; that his failure to pay the dishonored check
fee allowed ARS to seek from him not only that fee, but also an additional
statutory fee; and that he failed to show that his bank account contained only
federal benefits exempt from garnishment. Id. at 7-9. The court ruled that Arby’s
was also entitled to summary judgment because it proved that it had no
involvement with the garnishment of Mr. Sheriff’s funds. Id. at 10. The court
denied Mr. Sheriff’s motions for a change of venue between divisions of the
District of Wyoming because it viewed the additional driving distance to
Cheyenne as minimal. Id. at 10-11. The court denied Mr. Sheriff’s challenge to
the state statute because it was barred by res judicata and because it lacked cogent
support. Id. at 11. Finally, the court denied Mr. Sheriff’s motion for summary
judgment. Id. Mr. Sheriff appeals.
II.
Mr. Sheriff’s briefs on appeal lack clarity. 3 As we stated in his prior
appeal, because he is proceeding pro se, we construe his briefs liberally and “have
3
In addition to his opening brief, Mr. Sheriff filed five documents labeled
“Addendum” that were received, not filed. Under the procedural rules, an
appellant is allowed to file an opening brief, Fed. R. App. P. 28(a), and a reply
brief, id. (c), but “[u]nless the court permits, no further briefs may be filed[,]” id.We have reviewed Mr. Sheriff’s five Addenda, grant permission for the
Addendum filed on March 13, 2009, to be filed as a reply brief, and direct the
clerk of this court to file it. The other four Addenda supplement arguments
already made in Mr. Sheriff’s opening brief, and we deny permission for them to
be filed.
-6-
tried to discern the kernel of the issues []he wishes to present on appeal.”
de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007). However, “[t]his
liberal treatment is not without limits.” Kay v. Bemis, 500 F.3d 1214, 1218
(10th Cir. 2007). Mr. Sheriff is required to follow the same rules of procedure
that govern other litigants. Id. We make some allowances for his “failure to cite
proper legal authority, his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading requirements.” Richards
v. Bellmon, 941 F.2d 1015, 1018 n.3 (10th Cir. 1991) (quotation omitted). But we
do not “take on the responsibility of serving as [his] attorney in constructing
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
Deciphering his statement of nine issues as best we can, see Aplt. Br. at 9,
Mr. Sheriff argues on appeal that: (1, 2, and 7) the district court should not have
denied his motions for a change of venue from Cheyenne to Casper because his
doctor recommended that he not drive as far as Cheyenne due to his physical
disabilities; (3, 4, and 6) the district court should have required the original check
to be produced in federal court; (5, 8) the district court should have addressed his
constitutional issues before granting summary judgment to defendants; and (9) the
district court should have applied the Uniform Commercial Code in his favor.
“We review the grant of summary judgment de novo, applying the same
standard as that used by the district court.” Travis v. Park City Mun. Corp.,
-7-
565 F.3d 1252, 1255 (10th Cir. 2009). Summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In addition,
“[a] federal court is authorized, in its discretion, to transfer proceedings from one
division of a district to another, upon motion, consent or stipulation of all of the
parties.” Fallbrook Pub. Util. Dist. v. United States Dist. Ct., 202 F.2d 942, 944
(9th Cir. 1953) (discussing 28 U.S.C. § 1404(b)). We therefore review the district
court’s denial of Mr. Sheriff’s motions for change of venue under 28 U.S.C.
§ 1404(b) for a clear abuse of discretion. See Scheidt v. Klein, 956 F.2d 963, 965
(10th Cir. 1992).
We have carefully reviewed the parties’ briefs, the record on appeal, the
supplemental record on appeal, and defendants-appellees’ joint appendix in light
of the governing law. We find no error. The district court properly did not
address Mr. Sheriff’s issues because they were barred by res judicata.
Mr. Sheriff’s stated issue on appeal under the Uniform Commercial Code is not
supported in his opening brief by even minimally developed legal argument or
any authority and is therefore waived. See Phillips v. Calhoun, 956 F.2d 949,
953-54 (10th Cir. 1992). We affirm for substantially the same reasons as those
set out in the district court’s thorough and well-reasoned November 14, 2008,
Order Granting Defendants’ Motion for Summary Judgment. We are not
-8-
persuaded that Mr. Sheriff’s motions for a change of venue were adequately
supported in the district court or that the district court abused its discretion in
denying them. In his Addendum filed on May 28, 2009, Mr. Sheriff moves for
the district judge to be recused from hearing this case a third time. Because we
affirm the grant of summary judgment, the motion to recuse is moot and is
denied.
Mr. Sheriff has not demonstrated the existence of a reasoned, nonfrivolous
issue to be raised on appeal. Therefore, his motion for leave to proceed in this
court without prepayment of costs or fees must be denied. See Coppedge v.
United States, 369 U.S. 438, 446 (1962). Mr. Sheriff shall pay the entire filing
fee for this appeal forthwith.
The clerk of this court is directed to file Mr. Sheriff’s “Addendum” filed on
March 13, 2009, construed as a reply brief. The judgment of the district court is
AFFIRMED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
-9-