Lyons v. Kyner , 367 F. App'x 878 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
February 10, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
BRYAN LYONS,
Plaintiff-Appellant,
v. No. 09-3308
JENNIFER KYNER; JODY PRYOR; (D.C. No. 2:09-CV-02045-JWL)
BOB BEARD, (D. Kan.)
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
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, submitted without oral argument.
Pro se Plaintiff-Appellant Bryan Lyons appeals the district court’s
*
This order and judgment is not binding precedent, except under the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.
dismissal of his complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I
In January 2009 Lyons filed a complaint in the United States District Court
for the District of Kansas against Jennifer Kyner, Jody Pryor, and Bob Beaird 1
(together “defendants”) for alleged negligence and violations of his rights that
allegedly occurred at a trial on February 22, 2005. Lyons also asserted a claim
for a “failed safe living environment” in violation of the Fair Housing Act, 42
U.S.C. § 3601 et seq. ROA at 8. A magistrate judge ordered Lyons to show
cause as to why the case should not be dismissed for failure to state a claim, and
Lyons filed a lengthy response setting forth his factual allegations and asserted
claims.
In his response, Lyons stated that he was asserting a claim under 42 U.S.C.
§ 1983, and a state law negligence claim for defendants’ breach of their alleged
duty to provide Lyons with a “reasonable fair trial.” Id. at 13, 18. That allegedly
unfair trial occurred on February 22, 2005 in Jackson County, Missouri: Kyner
was an attorney involved in the trial, Pryor was a landlord, and Beaird was the
1
In his complaint and response, Lyons referred to the trial judge as “Bob
Beard.” The district court acknowledged that a judge named “Bob Beaird” sits on
the Sixteenth Judicial Circuit Court of Jackson County, Missouri, and the district
court took judicial notice of the appropriate spelling for the judge’s name.
2
presiding judge. 2 Lyons claimed that defendants conspired to perpetrate a fraud
upon the court and to deny him of many of his constitutional rights. Lyons claims
that witnesses gave perjured testimony, the defendants contrived a false
conviction, and defendants violated his equal protection rights by discriminating
against him on the basis of his gender. Id. at 20-22. Lyons claims that these
alleged deprivations resulted in an “unlawful judgment” that caused him harm,
including mental anguish and the loss of a computer programming degree. Id. at
16-17.
Lyons raised specific allegations against Judge Beaird and Kyner. Lyons’s
allegations against Judge Beaird included abusing judicial authority, denying
Lyons’s request for a jury trial, failing to demonstrate professional competence,
and engaging in wrongful conduct by “giving victory to Jennifer,” telling Lyons
that he would “send [Lyons] to a hanging Judge,” and “showing favoritism to the
ladies testimony while ignoring Mr. Lyons truthfulness.” Id. at 22, 25, 30.
Lyons’s allegations against Kyner, contained in his original complaint, included
acting negligently at trial, denying Lyons certain discovery, using perjured
testimony, and conspiring against Lyons to obtain an illegal judgment. 3 Id. at 6.
2
Lyons claimed all three defendants were public officials, but provided no
support for this claim.
3
Lyons also alleged that the defendants violated several criminal statutes,
and that Judge Beaird and Kyner violated 28 U.S.C. § 453, which requires each
justice and judge of the United States to take an oath supporting the Constitution.
3
Lyons also asserted a claim under 42 U.S.C. § 1985(3) based on an alleged
conspiracy to deprive him of his Fourteenth Amendment rights. Lyons alleged
that the conspiracy was “effected through Jennifer, Bob, Jody, James Green, Eric
Glover, [and] Walker,” and in another part of his response, he alleged that
“defendants did conspire or go in disguise on the highway or on the premises of
another for the purpose of depriving . . . any person . . . of the equal protection of
the laws . . . .” Id. at 39, 45.
Several of Lyons’s other factual allegations contained in his response relate
to the Fair Housing Act claim that he stated in his complaint. Lyons claimed that
defendants wrongfully prevented the prosecution of James Green, a maintenance
man at his apartment complex, for the rape of a young girl living nearby. Id. at
20. Lyons also claims that Eric Glover, another maintenance man, protected his
co-worker by aiming a gun at Lyons and telling Lyons that “he would be found
dead” if he pursued his co-worker’s prosecution. Id. Lyons also contends that
other tenants at his apartment complex physically injured him, all the witnesses at
the trial assaulted him at the apartment complex, and a woman came into his
apartment and attacked him. Id. at 19, 21, 25.
Lyons sought injunctive and declaratory relief, compensatory and punitive
damages, and requested that the court “overturn [and] change [Judge Beaird’s]
illegal orders against Plaintiff.” Id. at 48. Lyons also specifically requested a
“new trial or reinstatement my apartment for a fix time.” Id. at 30.
4
The district court referred the case to the magistrate judge. The magistrate
judge granted Lyons leave to proceed in forma pauperis, and after considering the
allegations in Lyons’s complaint and in his response to the show cause order, the
magistrate judge issued an extensive report and recommendation concluding that
the action should be dismissed. The magistrate judge concluded that Lyons’s §
1983, § 1985(3), and negligence claims were inextricably intertwined with the
state court action in Missouri and therefore the Rooker-Feldman doctrine 4 barred
their review in federal district court. The magistrate judge also concluded that all
three claims were barred by the applicable two-year statute of limitations. The
magistrate judge also dismissed these claims against Judge Beaird on other
alternative grounds: judicial immunity barred Lyons’s request for monetary relief,
and Lyons failed to state a claim for injunctive and declaratory relief. 5 Finally,
the magistrate judge also concluded that Lyons’s failed to state a claim for relief
under the Fair Housing Act.
After the magistrate judge issued his report and recommendation, Lyons
filed an objection to the report and recommendation. Lyons objected to “any and
4
“The Rooker-Feldman doctrine prevents the lower federal courts from
exercising jurisdiction over cases brought by state-court losers challenging
state-court judgments rendered before the district court proceedings commenced.”
Mann v. Boatright, 477 F.3d 1140, 1146 (10th Cir. 2007) (citation and quotation
omitted).
5
The magistrate judge also concluded that the criminal statutes Lyons
listed in his response did not confer standing on a private citizen to bring a civil
cause of action.
5
all of the Report and Recommendation” and specifically stated his belief that
“[i]mmunity does not cover [c]orruption in office or limitations.” Id. at 82. The
district court considered these objections, overruled them, and adopted the report
and recommendation in its entirety. 6
II
“[W]e review de novo a district court’s sua sponte dismissal pursuant to 28
U.S.C. § 1915(e)(2) in an in forma pauperis proceeding.” Vasquez Arroyo v.
Starks, 589 F.3d 1091, 1094 (10th Cir. 2009). Pursuant to 28 U.S.C. §
1915(e)(2)(B), a court “at any time” “shall dismiss” a case proceeding in forma
pauperis if the court determines that the appeal fails to state a claim on which
relief can be granted. To state a claim, the plaintiff must provide “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). Because Lyons appears pro se, “we construe his
pleadings and papers liberally, but our role is not to act as his advocate.”
Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
The magistrate judge articulated multiple reasons in recommending that
Lyons’s § 1983, § 1985(3), and negligence claims should be dismissed, all of
6
We note that neither the magistrate judge nor the district court addressed
whether venue for this action was proper in the District of Kansas. And although
Lyons indicated in his complaint that Kyner maintained an address in Westwood,
Kansas, ROA at 5, neither the magistrate judge nor the district court addressed
whether the court had personal jurisdiction over each of the three defendants.
6
which the district court adopted in dismissing these claims. Having reviewed the
allegations in Lyons’s complaint and in his response to the show cause order, we
agree that these claims are time-barred: each cause of action arose during the
allegedly unfair trial on February 22, 2005, and the applicable two-year statute of
limitations had run by the time Lyons filed his complaint in January 2009. We
also agree that Lyons fails to state a claim for relief under the Fair Housing Act.
A
The statute of limitations for claims under § 1983 “is drawn from the
personal-injury statute of the state in which the federal district court sits.”
Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). For conspiracy
claims under § 1985(3), courts have also applied the forum state’s personal-injury
statute of limitations. See Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996);
Kaster v. Iowa, 975 F.2d 1381, 1382 (8th Cir. 1992) (per curiam); McDougal v.
County of Imperial, 942 F.2d 668, 673-74 (9th Cir. 1991); Bougher v. Univ. of
Pittsburgh, 882 F.2d 74, 79 (3d Cir. 1989). Thus, we apply Kansas’s two-year
statute of limitations for personal injury actions to Lyons’s § 1983 claim and his §
1985(3) claim. See Kan. Stat. Ann. § 60-513(a)(4) (“The following actions shall
be brought within two years . . . [a]n action for injury to the rights of another, not
arising on contract, and not herein enumerated.”).
“A civil rights action accrues when facts that would support a cause of
action are or should be apparent.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.
7
1995) (citation and quotation omitted). The limitations period for a § 1985(3)
action “runs from the occurrence of the last overt act resulting in damage to the
plaintiff.” Bell v. Fowler, 99 F.3d 262, 270 (8th Cir. 1996) (citation and
quotation omitted). Here, Lyons’s § 1983 claim arose during the February 22,
2005 trial when the defendants allegedly deprived Lyons of several of his
constitutional rights which resulted in an unlawful judgment. With respect to his
§ 1985(3) claim, we note that Lyons has alleged that a conspiracy was “effected
through Jennifer, Bob, Jody, James Green, Eric Glover, [and] Walker” and that
“defendants did conspire or go in disguise on the highway or on the premises of
another” to deprive “any person” of his or her Fourteenth Amendment rights.
ROA at 39, 45. Despite these generalized allegations, we agree with the
magistrate judge that the last overt act alleged in this conspiracy occurred during
the February 22, 2005 trial. 7 Accordingly, we conclude that the applicable two-
year statute of limitations had already run on Lyons’s § 1983 and § 1985(3)
claims by the time Lyons filed his complaint in January 2009.
We have recently held that it is inappropriate for a district court to dismiss
sua sponte a prisoner’s § 1983 action on the basis of the statute of limitations
“unless it is clear from the face of the complaint that there are no meritorious
7
Lyons does not appear to contest that conclusion: his only reference to the
statute of limitations in his brief on appeal is that “[t]here is no statute [of]
limitations on corruption.” Aplt. Br. at 4.
8
tolling issues, or the court has provided the plaintiff notice and an opportunity to
be heard on the issue.” Vasquez Arroyo, 589 F.3d at 1097. Here, however, we
note that Lyons received the benefit of notice and an opportunity to be heard on
the statute of limitations issue in the district court. After the magistrate judge
recommended that Lyons’s § 1983 and § 1985(3) claims be dismissed because the
statute of limitations had run on those claims, Lyons filed a objection to the
report and recommendation that generally disagreed with “any and all of the
Report and Recommendation” and specifically stated that “[i]mmunity does not
cover [c]orruption in office or limitations.” ROA at 82. The district judge
considered and overruled Lyons’s objections in adopting the report and
recommendation in its entirely.
We also conclude that the applicable two-year statute of limitations bars
Lyons’s negligence claims. Federal courts that sit in diversity apply “the choice
of law principles of the state in which it sits.” Morrison Knudsen Corp. v. Group
Improvement Techniques, Inc., 532 F.3d 1063, 1077 n.12 (10th Cir. 2008).
“Kansas, the forum state in this case, generally applies its own statutes of
limitations to actions before it.” Garcia v. Int’l Elevator Co., Inc., 358 F.3d 777,
779 (10th Cir. 2004) (citation and quotation omitted). 8 Thus, we also apply
8
Kansas recognizes two exceptions to this general rule, neither of which
apply to this case. First, if a cause of action is based on a non-Kansas statute
“that incorporates a limitations period for suit, that statutory time restriction is
(continued...)
9
Kansas’s two-year statute of limitations for personal-injury actions to Lyons’s
negligence claim. And because Lyon’s negligence claim also stems from the
allegedly unlawful judgment and the allegedly unlawful conduct that occurred
during the February 2005 trial, we also conclude that this claim is time-barred.
B
The Fair Housing Act was “designed primarily to prohibit discrimination in
the sale, rental, financing, or brokerage of private housing and to provide federal
enforcement procedures for remedying such discrimination . . . .” Otero v. N.Y.
City Hous. Auth., 484 F.2d 1122, 1133 (2d Cir. 1973) (emphasis omitted). The
Act prohibits “discrimination in the rental of a dwelling, or in the provision of
services in connection with a rental.” Honce v. Vigil, 1 F.3d 1085, 1088 (10th
Cir. 1993); see also 42 U.S.C. § 3604(a)-(b). As the district court and the
magistrate judge recognized, though Lyons has alleged that he has endured
physical injuries and threatening conduct while living at his apartment complex,
he has not alleged that he was the victim of discrimination on the basis of his
race, color, religion, sex, familial status, or national origin. For this reason, we
conclude that Lyons has failed to state a claim for relief under the Fair Housing
8
(...continued)
considered substantive in nature and will be considered controlling.” Garcia, 358
F.3d at 779 (quotations and citations omitted). “Second, if the cause of action
arose in another jurisdiction, the Kansas borrowing statute, Kan. Stat. Ann. § 60-
516, requires application of the other jurisdiction’s statute of limitations if it
would result in the action being time-barred.” Id.10
Act.
III
For the reasons stated, we AFFIRM the dismissal of Lyons’s complaint. 9
Entered for the Court
Mary Beck Briscoe
Circuit Judge
9
Lyons also appears to challenge the magistrate’s denial of his request to
be appointed counsel. Lyons filed a motion to appoint counsel in the district
court, and the magistrate judge denied that motion after issuing his report and
recommendation. In his brief on appeal, Lyons argues that his case “should
[have] been tried with [a] lawyer” and he asks us to appoint him counsel. Aplt.
Br. at 3, 4. “The appointment of counsel in a civil case is left to the sound
discretion of the district court.” Shabazz v. Askins, 14 F.3d 533, 535 (10th Cir.
1994). Because we have concluded that Lyons’s claims are subject to dismissal
as untimely filed or generally lacking in merit, we also conclude that the district
court did not abuse its discretion in declining to appoint counsel for Lyons.
11