Greene v. United States Postal Service ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 18, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CEDRIC GREENE,
Plaintiff - Appellant,
and
KATRICE CYPHERS,
Plaintiff,
v. No. 18-1345
(D.C. No. 1:18-CV-01985-LTB)
UNITED STATES POSTAL SERVICE, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
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Plaintiff Cedric Greene, proceeding pro se, filed a “Motion for Leave to File a
Civil Complaint” in the United States District Court for the District of Colorado. (It is
not clear why Plaintiff chose to file a motion instead of a complaint, but we note that a
*
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 This order and judgment is not binding precedent, except under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.
number of courts—including this one—have placed filing restrictions on him. See
Greene v. Sprint Nextel Corp., No. 18-3027, 2018 WL 4520112, at *4 & n.3 (10th Cir.
Sept. 20, 2018) (imposing filing restrictions in the Tenth Circuit, and noting restrictions
in the Ninth Circuit, District of Kansas, District of Utah, Central District of California,
and District of Nevada). The motion claimed that in June 2018 a “Federal entity” had in
some way “victimized” his grandson, a five-year-old child, in King County, Washington,
and that the child’s mother, Katrice Cypher, desired “to proceed in a civil action.” App.
at 4-5. Plaintiff’s pleadings on appeal make it clear that he is claiming that the United
States Postal Service intentionally inflicted emotional distress on his grandson, because
money was stolen from a birthday card sent to him and a second card was damaged the
following day.
Recognizing its “inherent power to manage [its] docket[] to achieve the orderly
and expeditious disposition of cases,” App. at 14 (internal quotation marks omitted), the
district court denied Plaintiff’s motion and dismissed the case without prejudice on two
grounds: (1) Plaintiff lacked standing to pursue the suit because a pro se plaintiff
generally cannot represent the interests of a minor child in court, see Adams ex rel.
D.J.W. v. Astrue, 659 F.3d 1297, 1300 (10th Cir. 2011) (“In this circuit, we have held that
under Fed. R. Civ. P. 17(c) and 28 U.S.C. § 1654, a minor child cannot bring suit through
a parent acting as next friend if the parent is not represented by an attorney.” (internal
quotation marks omitted)); and (2) the district of Colorado was not a proper venue for the
case, because the alleged events giving rise to Plaintiff’s claim did not take place in
Colorado and the intended defendant (then an unspecified “federal entity,” now revealed
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to be the Postal Service) did not reside in Colorado, see 28 U.S.C. § 1391(e)(1)(B)
(limiting venue for suits against federal agencies to the district where “a defendant
resides,” “a substantial part of the events or omissions giving rise to the claim occurred or
a substantial part of property that is the subject of the action is situated,” or “the plaintiff
resides”); id. § 1406(a) (“The district court of a district in which is filed a case laying
venue in the wrong division or district shall dismiss, or . . . transfer such case.”); see also
Reuben H. Donnelly Corp. v. FTC, 580 F.2d 264, 267 (7th Cir. 1978) (the “residence” of
a federal agency is ordinarily limited to the District of Columbia). Plaintiff has appealed
the dismissal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
On appeal, Plaintiff makes no relevant arguments for reversal. His apparent
argument that the district court should have appointed an attorney for his grandson rather
than dismiss the case was never presented to the district court, and we will not consider it.
See Tele-Communications, Inc. v. Comm’r, 104 F.3d 1229, 1232 (10th Cir. 1997)
(“Generally, an appellate court will not consider an issue raised for the first time on
appeal.”) His claim that he cannot, for undisclosed reasons, file this case in the Western
District of Washington does not make venue proper in Colorado. And there is no merit to
his assertion that the district court was required to issue an order to show cause or permit
some additional filing before dismissing the suit. See Trujillo v. Williams, 465 F.3d
1210, 1217 (10th Cir. 2006) (“[T]he district court may consider . . . venue sua
sponte . . . when the defense is obvious from the face of the complaint and no further
factual record is required to be developed.” (internal quotation marks omitted)); Wenger
v. Canastoga Cent. School Dist., 146 F.3d 123, 125 (2d Cir. 1998) (“The court has a duty
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to enforce the . . . rule [that minor children must be represented by attorneys] sua sponte,
for the infant is always the ward of every court wherein his rights or property are brought
into jeopardy, and is entitled to the most jealous care that no injustice be done to him.”
(brackets and internal quotation marks omitted)), overruled on other grounds by
Winkelman v. Parma City School Dist., 550 U.S. 516 (2007). In any event, Plaintiff has
not indicated how notice would have enabled him to cure the fatal defects recited by the
district court.
We AFFIRM the district court’s order denying Plaintiff’s motion and closing the
action. We DENY Plaintiff’s motion to proceed in forma pauperis. We GRANT
Plaintiff’s motion to amend the case title.
Entered for the Court
Harris L Hartz
Circuit Judge
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