Webb v. Swensen , 663 F. App'x 609 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 3, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVID WEBB,
Plaintiff - Appellant,
v. No. 16-4103
(D.C. No. 1:14-CV-00148-DB-DBP)
ELIJAH SWENSEN; TRAVIS KEARL; (D. Utah)
ALICIA MARIE WASHINGTON; ANDY
MUELLER; BENJAMIN REINKINS
SOKOLIK; MICHAEL ASHMENT;
BRETT JAY LYMAN; CLINT R.
DRAKE,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ, and PHILLIPS, Circuit Judges.
_________________________________
David Webb, proceeding pro se here as in the district court, appeals the district
court’s orders adopting the recommendations of a magistrate judge to dismiss his
civil-rights action. The court ruled that Mr. Webb’s proposed amended complaint
failed to state a claim and that leave to amend would be futile. Mr. Webb also
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
challenges the orders denying his motion to recuse the magistrate judge and denying
certification under Fed. R. Civ. P. 54(b).
The district court granted Mr. Webb leave to proceed in forma pauperis (IFP)
and dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2) (stating court shall
dismiss an IFP action if it fails to state a claim upon which relief may be granted).
Because the summons and complaint were never served on the defendants, they have
filed no responsive pleadings either here or in the district court.
We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Mr. Webb has provided no factual context in his appellate brief for this court
to consider his claims. See Fed. R. App. P. 28(a)(6) (requiring appellant’s brief to
contain, among other things, “a concise statement of the case setting out the facts
relevant to the issues submitted for review”). Nevertheless, given Mr. Webb’s pro se
status, we have gleaned the following factual setting from his proposed second and
third amended complaints, as well as from the magistrate judge’s reports.
Mr. Webb, an African American, alleged that in September 2014, he and
another man were sitting on the patio of an eatery in Ogden, Utah, when two men,
later identified as defendants Mueller and Sokolik, harassed Mr. Webb by taking
photographs and videos of him. He further alleged that the two men made
threatening gestures toward him and threatened to kill him. After exchanging words
with the two men, Mr. Webb called 911.
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Defendants Swensen and Kearl, Ogden Police Officers, responded to the 911
call. The officers spoke with the two men and then with Mr. Webb. According to
Mr. Webb, the officers were not concerned with the conduct of the two men, but
informed Mr. Webb of a stalking complaint made by a woman, later identified as
defendant Washington. The officers asked Mr. Webb if he had placed a rose on
Ms. Washington’s car. He denied doing so. Although Mr. Webb requested that the
officers arrest the two men, they did not. Mr. Webb alleged that Officer Swensen
said, “here in Ogden there are few Black Men and these two (2) White Males can do
whatever they want to both of you and not be arrested for their actions.”
R. Doc. 25-1, at 11. Ultimately, the officers left the scene without charging or
arresting anyone. Mr. Webb later learned the identities of the men through
public-record requests and inquiries with the police department.
Mr. Webb filed suit under 42 U.S.C. §§ 1983, 1985, 1986, 2000d to 2000d-7
(Title VI of the Civil Rights Act of 1964), and Utah state law. In addition, he
asserted claims under the First, Fourth, Sixth, and Fourteenth Amendments. The
magistrate judge recommended dismissing Mr. Webb’s complaint and proposed
amended complaints for failure to state a claim. The district court adopted those
recommendations and closed the case. Mr. Webb unsuccessfully sought recusal of
the magistrate judge and the district judge.
II. STANDARDS OF REVIEW
“Like dismissals under Rule 12(b)(6), we review de novo a district court’s
sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2) in an in forma pauperis
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proceeding.” Vasquez Arroyo v. Starks, 589 F.3d 1091, 1094 (10th Cir. 2009).
A complaint is subject to dismissal unless it contains “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). We “accept[] all well-pleaded factual allegations in the [amended] complaint
as true and constru[e] them in the light most favorable to the plaintiff.” In re Level 3
Commc’ns, Inc. Sec. Litig., 667 F.3d 1331, 1339 (10th Cir. 2012).
We have liberally viewed Mr. Webb’s pro se filings. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however,
“take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Id. Moreover, “pro se parties [must] follow
the same rules of procedure that govern other litigants.” Id. (internal quotation marks
omitted).
III. DISCUSSION
A. Sufficiency of Proposed Third Amended Complaint
For his first appellate issue, Mr. Webb argues that his proposed third amended
complaint was sufficient under § 1915(e)(2). The district court dismissed the case
because the proposed second amended complaint failed to state a claim.1
“A dismissal with prejudice is appropriate where a complaint fails to state a
claim . . . and granting leave to amend would be futile.” Brereton v. Bountiful City
Corp., 434 F.3d 1213, 1219 (10th Cir. 2006). On appeal, Mr. Webb merely asserts
1
Mr. Webb filed a proposed first amended complaint, but before the
magistrate judge evaluated it, Mr. Webb filed his second amended complaint, which
the district court ruled failed to state a claim.
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his proposed third amended complaint alleges that the state actors, Officers Swensen
and Kearl, Police Chief Ashment, City Attorney Drake, and Ogden City Corporation,
discriminated against him on the basis of race. He has made no attempt to explain
how his third amended complaint cures the deficiencies in his proposed second
amended complaint, and we decline to search the record or make an argument for
him.2 Therefore, allowing leave to amend would have been futile.
B. Selective Enforcement
Next, Mr. Webb contends the magistrate judge and the district court
impermissibly resolved disputed material facts and weighed the evidence. But rather
than identify disputed facts the court impermissibly resolved, Mr. Webb contends
Officer Swensen’s alleged remark about not protecting Mr. Webb because of his race
stated various federal and state-law claims. He asserts claims under Title VI for race
discrimination, with a related claim under the False Claims Act (FCA) alleging the
defendants submitted false claims to the Department of Justice to participate in
federal financial aid programs. He invokes the “stripping doctrine,” which he asserts
allows defendants to be sued in their individual capacities. Aplt. Br. at 14. He
argues the following doctrines do not apply: Utah governmental immunity,
exhaustion of state remedies, and qualified immunity. He also asserts the state-law
2
Mr. Webb’s appellate brief does not mention defendant Lyman (Owner of
Scrud’s Gourmet Grub, LLC). Thus, any claims against him are waived. See Lounds
v. Lincare, Inc., 812 F.3d 1208, 1233 (10th Cir. 2015) (holding issue waived on
appeal where party did not make any meaningful appellate argument).
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claims of intentional infliction of emotional distress, false arrest, false imprisonment,
and malicious prosecution.
Taking as true Mr. Webb’s allegation that Officer Swensen made the offensive
remark, Mr. Webb has failed to state a claim under any of these theories.
“Title VI . . . bans discrimination based upon race, color, or national origin in any
program or activity receiving federal financial assistance.” Baker v. Bd. of Regents
of Kan., 991 F.2d 628, 631 (10th Cir. 1993). To state a cause of action under
Title VI, a plaintiff must show “(1) that there is racial or national origin
discrimination and (2) the entity engaging in discrimination is receiving federal
financial assistance.” Id. (emphasis added). Title VI forbids discrimination only by
recipients of federal funding; therefore, individual employees of such entities are not
liable under Title VI. See Shotz v. City of Plantation, 344 F.3d 1161, 1171 (11th Cir.
2003) (“It is beyond question . . . that individuals are not liable under Title VI.”);
Buchanan v. City of Bolivar, 99 F.3d 1352, 1356 (6th Cir. 1996) (rejecting plaintiff’s
Title VI claim, in part, because she asserted her claim against individuals, rather than
the entity allegedly receiving the financial assistance); see also United States v.
Baylor Univ. Med. Ctr., 736 F.2d 1039, 1044 n.9 (5th Cir. 1984) (noting that
“Title VI requires that the public bodies or private entities receiving the benefits of
any such loan refrain from racial discrimination” (internal quotation marks omitted)).
Mr. Webb has failed to plead discriminatory action on the part of a governmental
entity. Therefore, the Title VI claim fails.
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Mr. Webb does not provide any factual foundation for his FCA claim.
Although his brief contains extensive legal argument, the FCA claim appears to be
merely that the “State Actor Defendants and Ogden City Corporation[] submitted
False Claims and Statements to the United States Department of Justice from 2006
through the Present in order to participate in Title VI Federal Financial Aid
Programs.” Aplt. Br. at 17. This conclusory allegation is insufficient to invoke our
review. See Palma–Salazar v. Davis, 677 F.3d 1031, 1037 (10th Cir. 2012)
(declining to address conclusory statements (collecting cases)).
Turning to Mr. Webb’s state-law claims, the district court held that he failed to
allege that defendants’ conduct caused him emotional distress. In his proposed third
amended complaint, Mr. Webb again did not allege facts supporting such a claim, but
merely referred to “paragraphs 6 through 66, above.” R. Doc. 40-1, at 32. It does
not appear that those paragraphs even mention emotional distress, let alone establish
the elements of a cause of action for intentional infliction of emotional distress.
See Nelson v. Target Corp., 2014 UT App 205, ¶ 20 n.4, 334 P.3d 1010, 1017 n.4
(setting out elements for intentional infliction of emotional distress). Mr. Webb’s
remaining state-law claims are based on an allegedly illegal arrest, imprisonment,
and/or prosecution. Since he was not arrested, imprisoned, or prosecuted, these
claims perforce were properly dismissed.
C. Selective Enforcement Claim
Third, Mr. Webb asserts dismissal was unwarranted because discovery was
necessary to determine whether his proposed amended complaints stated a claim for
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selective enforcement. Mr. Webb does not explain, however, how discovery would
assist in stating a claim. Rather, he argues his selective-enforcement claim is based
on harassment by the two white males and Ms. Washington’s stalking allegation. He
claims the police officers did not credit his claims because he is African American.
He relies on the offensive statement allegedly made by Officer Swensen. He further
complains that he was investigated for stalking Ms. Washington, while the two men
he encountered at the restaurant were not investigated or named in any police report
because of their race. All this, he asserts, demonstrates race-based selective
enforcement of the law.
Mr. Webb has failed to state a claim of race-based selective law enforcement.
To state a selective-enforcement claim, a plaintiff must show “that a
similarly-situated individual of another race could have been, but was not, stopped or
arrested for the offense for which the [claimant] was stopped or arrested,” as well as
“that discriminatory intent was a motivating factor in the decision to enforce the
criminal law against the [claimant].” United States v. Alcaraz-Arellano, 441 F.3d
1252, 1264 (10th Cir. 2006) (brackets, ellipsis, and internal quotation marks omitted)
(discussing racial discrimination in traffic stops and arrests). Mr. Webb did not
allege that he was stopped or arrested for an offense that a similarly situated white
person could have been, but was not, stopped or arrested for. Even though Mr. Webb
claims he was questioned for harassing Ms. Washington while the two males were
not questioned for harassing him, under his undisputed facts his alleged actions
toward Ms. Washington were not similar to the males’ alleged actions toward him.
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Moreover, the police officers did not stop Mr. Webb; he summoned the police by
calling 911. And no one of any race was detained or arrested. The officers
interviewed the two men, Ms. Washington, and Mr. Webb. Although Mr. Webb
complains that he was named in a police report while the others were not, this does
not implicate selective law enforcement. Thus, taking as true Mr. Webb’s
allegations, including the remark allegedly made by Officer Swensen, Mr. Webb did
not state claim for selective enforcement.
D. Gender Discrimination Claim
For his next issue, Mr. Webb asserts his proposed third amended complaint
states a claim for discrimination based on gender, in violation of the Fourteenth
Amendment. He has not identified where he presented this claim, in either the
proposed second amended complaint or the third. A cursory review of those
documents has not revealed such a claim. “We require that ‘for each issue raised on
appeal, all briefs must cite the precise reference in the record where the issue was
raised and ruled on.’” BWP Media USA, Inc. v. Clarity Dig. Grp., LLC, 820 F.3d
1175, 1182 (10th Cir. 2016) (brackets omitted) (quoting 10th Cir. R. 28.2(C)(2)).
Therefore, we do not consider this claim. See Rachel v. Troutt, 820 F.3d 390, 398
(10th Cir. 2016) (holding claim not presented to the district court may not be raised
on appeal for the first time).
E. Rule 54(b) Certification
Fifth, Mr. Webb complains that the district court did not certify its order as
final and appealable under Rule 54(b). He asserts such certification was necessary to
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permit briefing to proceed in an earlier appeal, case No. 16-4046. But that appeal
was dismissed June 4, 2016, for lack of a final order. Moreover, Mr. Webb has
included in this appeal all district court orders covered by the former appeal.
Therefore, the district court’s failure to issue a Rule 54(b) certification had no effect
on Mr. Webb’s appeals.
F. Recusal of Magistrate Judge
For his sixth issue, Mr. Webb appeals the magistrate judge’s order denying
recusal. We review the order denying Mr. Webb’s motions to recuse for abuse of
discretion. Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297, 1308 (10th Cir.
2015).
Mr. Webb sought to recuse the magistrate judge pursuant to 28 U.S.C. §§ 144
and 455, claiming the magistrate judge lacked impartiality and thus was disqualified.
He relies, in part, on an alleged comment the magistrate judge made in a related case.
But he has not shown where he raised this claim in his motions to recuse and
affidavit filed in the district court. See BWP Media USA, Inc., 820 F.3d at 1182
(requiring appellate briefs to cite the precise record reference where issue was raised
and ruled on). Moreover, our review of the recusal filings revealed no such claim.
Therefore, we do not consider it. See Rachel, 820 F.3d at 398 (holding claim not
presented to the district court may not be raised on appeal for the first time). Even
so, “expressions of impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after having been
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confirmed as federal judges, sometimes display,” do not in themselves “establish[ ]
bias or partiality.” Liteky v. United States, 510 U.S. 540, 555-56 (1994).
Mr. Webb also claims the magistrate judge was disqualified to address his
claims because (1) the referral pursuant to 28 U.S.C. § 636 had ended, (2) the
magistrate judge’s law clerk granted an extension of time to amend the complaint,
(3) the magistrate judge had recommended imposing filing restrictions which were
later reversed, and (4) the magistrate judge issued adverse or delayed rulings in this
case and other cases Mr. Webb has filed.
The district court docket sheet reflects that this matter was correctly referred to
the magistrate judge. As for the law clerk’s alleged grant of an extension of time,
even taking as true the allegation that the law clerk agreed to such an extension, only
the court was empowered to grant an extension. See Fed. R. Civ. P. 6(b) (stating “the
court may, for good cause,” grant an extension of time (emphasis added)). The
remaining alleged grounds for recusal are adverse rulings. “Unfavorable judicial
rulings do not in themselves call into question the impartiality of a judge.” United
States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006). Thus, the magistrate judge
did not abuse his discretion in declining to recuse.3
3
Mr. Webb also sought recusal of Judge Benson. He has made no appellate
argument on this point, so he has waived it. See Lounds, 812 F.3d at 1233 (holding
issue waived on appeal where party did not make any meaningful appellate
argument).
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G. Claims Incorporated By Reference
For his seventh and eighth issues, Mr. Webb makes cursory reference to his
objections to the magistrate judge’s February 23, 2016, report and recommendation
and to an order concerning filing restrictions entered in another case. Mr. Webb’s
incorporation by reference of his arguments made before the district court and in
another case is “not acceptable appellate procedure.” Fulghum v. Embarq Corp.,
785 F.3d 395, 410 (10th Cir.), cert. denied, 136 S. Ct. 537, 538 (2015). Therefore,
these arguments are deemed waived. See id.
IV. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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