Armstrong v. Wyoming Department Envir. , 674 F. App'x 842 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 5, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
R. MARK ARMSTRONG,
Plaintiff - Appellant,
v. No. 16-8104
(D.C. No. 2:16-CV-00195-NDF)
WYOMING DEPARTMENT OF (D. Wyo.)
ENVIRONMENTAL QUALITY;
CASPER, WY; WYOMING
DEPARTMENT OF ENVIRONMENTAL
QUALITY HUMAN RESOURCES
ADMINISTRATOR, a/k/a James Uzzell,
in his official capacity; JAMES UZZELL,
individually; WYOMING DEPARTMENT
OF ENVIRONMENTAL QUALITY
SCIENTIST/LANDFILL PERMITS
EMPLOYEE, a/k/a Dale Anderson, in his
official capacity; DALE ANDERSON,
individually; CASPER WY LANDFILL
MANAGER, a/k/a C. Langston, in his
official capacity; C. LANGSTON,
individually,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, HOLMES, and MORITZ, Circuit Judges.
*
After examining Armstrong’s brief and the 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.
_________________________________
Proceeding pro se,1 R. Mark Armstrong appeals the district court’s order
denying his motion to proceed in forma pauperis (IFP) and its sua sponte dismissal of
his complaint with prejudice for failure to state a claim.2 See 28 U.S.C.
§ 1915(e)(2)(B)(ii) (“[T]he court shall dismiss the case at any time if the court
determines that . . . the action . . . fails to state a claim on which relief may be
granted . . . .”). Because Armstrong fails to identify any reversible error, we affirm.
On July 8, 2016, Armstrong filed a complaint in federal district court, alleging
that various defendants—including the Wyoming Department of Environmental
Quality (WDEQ)—violated his constitutional rights under the First, Fifth, and
Fourteenth Amendments. The complaint also alleges, inter alia, defamation and
violation of (1) the implied covenant of good faith and fair dealing; (2) Wyo. Stat.
Ann. § 16-4-205; (3) the False Claims Act (FCA), 31 U.S.C. § 3729; (4) the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-
1968; and (5) the Freedom of Information Act (FOIA), 5 U.S.C § 552.
The district court dismissed all of Armstrong’s claims. First, it dismissed
Armstrong’s claims alleging that defendants violated his First, Fifth, and Fourteenth
Amendment rights, concluding that the claims (1) are time-barred; (2) are barred by
1
Because Armstrong proceeds pro se, we liberally construe his filings. But we
won’t act as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005).
2
Although Armstrong’s notice of appeal designates the district court’s denial
of his motion to proceed IFP, he doesn’t challenge that decision in his opening brief.
Accordingly, we confine our analysis to the district court’s order dismissing his
complaint.
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the doctrine of res judicata; and (3) fail to state a claim upon which relief may be
granted. Second, it dismissed Armstrong’s claim that defendants violated the implied
covenant of good faith and fair dealing, concluding that (1) the claim is barred by the
doctrine of res judicata and (2) it fails to state a claim upon which relief may be
granted. Third, it dismissed Armstrong’s defamation claim, ruling that (1) the claim
is time barred and (2) defendants are entitled to sovereign immunity. Fourth, it
dismissed Armstrong’s FCA claim, determining that (1) the claim is time-barred;
(2) the claim fails to allege that defendants defrauded the federal government; and
(3) at least one of the defendants enjoys immunity. Fifth, it dismissed Armstrong’s
RICO claim, concluding that (1) Armstrong fails to allege a pattern of racketeering
activity and (2) the claim is time-barred. Finally, the district court dismissed
Armstrong’s FOIA and § 16-4-202 claims, concluding that (1) neither FOIA nor
§ 16-4-202 applies to the requested records and (2) Armstrong isn’t the correct party
to bring a civil § 16-4-202 claim.3
Armstrong first challenges the district court’s ruling that his claims alleging
violations of the First, Fifth, and Fourteenth Amendments and the implied covenant
of good faith and fair dealing are barred by res judicata. In support, he advances three
3
A district court proceeding under § 1915 may only sua sponte dismiss a
complaint based on an affirmative defense if that defense “is ‘obvious from the face
of the complaint’ and ‘[n]o further factual record [is] required to be developed.’”
Fratus v. DeLand, 49 F.3d 673, 674-75 (10th Cir. 1995) (quoting Yellen v. Cooper,
828 F.2d 1471, 1476 (10th Cir. 1987)). Although the district court relied on
affirmative defenses to dismiss all of Armstrong’s claims, Armstrong doesn’t suggest
on appeal that these requirements aren’t satisfied here. Instead, he points only to what
he perceives as various legal flaws in the district court’s reasoning.
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arguments. First, he asserts that he didn’t receive a full and fair hearing before the
district court dismissed his earlier complaint. See Plotner v. AT & T Corp., 224 F.3d
1161, 1168 (10th Cir. 2000); Yapp v. Excel Corp., 186 F.3d 1222, 1226 n.4 (10th Cir.
1999). Second, he argues that res judicata doesn’t apply because the doctrine doesn’t
“shield a blameworthy defendant from the consequences of his own misconduct.”
McCarty v. First of Ga. Ins. Co., 713 F.2d 609, 612 (10th Cir. 1983). Third, he
argues that res judicata doesn’t apply because his 2016 complaint contains additional
factual allegations that don’t appear in his earlier complaint.
But Armstrong fails to provide the requisite reasoning and legal authorities to
support these three arguments. Accordingly, we decline to address them. See Fed. R.
App. P. 28(a)(8)(A) (requiring appellant’s brief to include “appellant’s contentions
and the reasons for them, with citations to the authorities . . . on which the appellant
relies”); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (noting we
routinely refuse to consider arguments that fail to meet Rule 28’s requirements); see
also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (“This court has
repeatedly insisted that pro se parties ‘follow the same rules of procedure that govern
other litigants.’” (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992))).
And because Armstrong hasn’t adequately briefed any basis on which to disturb the
district court’s ruling that res judicata bars his claims asserting violations of (1) his
constitutional rights and (2) the implied duty of good faith and fair dealing, we affirm
that ruling without addressing Armstrong’s challenges to the district court’s
alternative bases for dismissing those claims.
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Next, Armstrong argues the district court erred in concluding that defendants
are entitled to sovereign immunity from his defamation claim. Armstrong explains
that “[t]he heart of” his entire action against defendants is the allegedly “unethical
and illegal permitting of a landfill.” Aplt. Br. 20, 69. And he points out that “[a]
governmental entity is liable for damages resulting from . . . property damage caused
by the negligence of public employees while acting within the scope of their duties in
the operation of public utilities and services including . . . solid . . . waste . . .
disposal.” Wyo. Stat. Ann. § 1-39-108(a).
But Armstrong’s defamation claim arises from allegations that defendants
(1) wrongfully terminated his employment; (2) refused to let him return to work;
(3) made defamatory remarks about him to the media; and (4) sent out an email
threatening to terminate the employment of any WDEQ employees who speak to him.
Even assuming that defendants undertook these actions in response to Armstrong’s
decision to report what he viewed as the illegal permitting of the landfill, Armstrong
makes no effort to explain whether or how defendants were “acting within the scope
of their duties in the operation” of the landfill when they allegedly defamed him. § 1-
39-108(a) (emphasis added). See City of Torrington v. Cottier, 145 P.3d 1274, 1278,
1280 (Wyo. 2006) (defining term “operation” and concluding that § 1-39-108
“waives immunity for negligence in keeping the public utility operable or
functional”); see also Sinclair v. City of Gillette, 270 P.3d 644, 645, 648 (Wyo. 2012)
(holding that city’s “negligence in determining the legal status of [plaintiffs’]
property” wasn’t “negligence in the operation of the storm drain” that city installed
5
on that property because city’s negligence was “unrelated to” actual operation of
storm drain). Because Armstrong’s defamation claim doesn’t rest on any actions that
defendants either performed or failed to perform in keeping the landfill “operable or
functional,” Cottier, 145 P.3d at 1280, his defamation claim “simply does not fit in
the niche provided” by § 1-39-108, Sinclair, 270 P.3d at 648 (quoting Sawyer v. City
of Sheridan, 793 P.2d 476, 478 (Wyo. 1990)). Accordingly, Armstrong fails to
demonstrate that the district court erred in concluding that defendants enjoy
sovereign immunity for purposes of his defamation claim, and we need not address
whether—as the district court concluded—that claim is also time-barred.
Next, Armstrong argues that the district court erred in concluding that his
FCA4 claim is time-barred. In support, he points to his allegation that defendants
accepted federal funds as late as 2015. But Armstrong doesn’t explicitly argue—let
alone provide authority establishing—that the FCA’s statute of limitations begins to
run only when a party accepts payment from the government on a false claim, as
opposed to when a party “knowingly presents” such a claim to the government.
§ 3729(a)(1)(A). See United States v. Rivera, 55 F.3d 703, 709 (1st Cir. 1995)
4
The district court construed Armstrong’s whistleblower claim as part of his
FCA claim and therefore dismissed it on the same basis. Armstrong argues this was
error, asserting that his whistleblower claim instead arises under the retaliation
provision of the Clean Water Act (CWA), 33 U.S.C. § 1251-1388. But to the extent
that Armstrong intended or attempted to plead a violation of 33 U.S.C. § 1367, the
district court lacked jurisdiction to hear that claim and properly dismissed it. See
Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1064 & n.2, 1065 (6th Cir.
2014) (explaining that CWA doesn’t “grant jurisdiction to the federal district courts
to hear claims filed by claimants under the retaliation provision[]” and that “a
claimant may not bring a claim under [CWA’s] retaliation provision[] directly in
federal district court”).
6
(explaining that FCA “attaches liability, not to . . . the government’s wrongful
payment, but to the ‘claim for payment’” (quoting § 3729(a)(1)(A))). Accordingly,
we find this argument inadequately briefed and affirm the district court’s order to the
extent it dismisses Armstrong’s FCA claim as time-barred. Thus, we need not address
Armstrong’s challenges to the district court’s alternative bases for dismissing this
claim.
Armstrong challenges the district court’s ruling that his RICO claim is time-
barred on similar grounds, arguing that (1) the underlying conduct is still ongoing
and (2) the statute of limitations doesn’t start to run unless and until that conduct
ceases. But the last predicate act rule doesn’t determine when a civil RICO claim
accrues. Rotella v. Wood, 528 U.S. 549, 554 (2000) (“Since a pattern of predicate
acts can continue indefinitely, with each separated by as many as 10 years, that rule
might have extended the limitations period to many decades, and so beyond any limit
that Congress could have contemplated.”). Accordingly, we reject this argument and
affirm the district court’s dismissal of Armstrong’s RICO claim.
That leaves only Armstrong’s claims under FOIA and § 16-4-205. The district
court dismissed both, concluding that the requested documents weren’t subject to
FOIA or § 16-4-205, and that in any event, a civil § 16-4-205 claim may only be
“initiated by the attorney general or the appropriate county attorney.” On appeal,
Armstrong makes no attempt to challenge either of these rationales; instead he argues
only that such laws are useless if the government can ignore them. In the absence of
any assertion that the district court’s reasoning was flawed, we find this argument
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inadequately briefed and decline to address it. See Fed. R. App. P. 28(a)(8)(A);
Bronson, 500 F.3d at 1104.
Because Armstrong fails to identify any basis for reversal, we affirm the
district court’s order dismissing Armstrong’s complaint with prejudice for failure to
state a claim.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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