HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 061.1 - Exhibit AAmber Tamborello
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Roberts v. Generation Next, LLC
United States Court of Appeals for the Tenth Circuit
April 22, 2021, Filed
No. 20-2068
Reporter
853 Fed. Appx. 235 *; 2021 U.S. App. LEXIS 11927 **; 2021 WL 1573896
GALE ROBERTS, individually and d/b/a "Gone
Working" (Pro Se), Plaintiff - Appellant, v.
GENERATION NEXT, LLC; ESTATE OF RICHARD
COOK; KATHARINE COOK FISHMAN; PAUL
MATTHEW CASTER; ANTIQUITY ENCOUNTER;
JOHN MELANCON; EXPEDITION RESOURCES, LLC;
EXPLORATION OPES, LLC; DONALD PATTERSON;
GERALD KEMLER; HOWARD TALKS; WILLIAM
FLOTO; JANE AND JOHN DOES, Defendants -
Appellees.
Notice: PLEASE REFER TO FEDERAL RULES OF
APPELLATE PROCEDURE RULE 32.1 GOVERNING
THE CITATION TO UNPUBLISHED OPINIONS.
Prior History: [**1] (D.C. No. 1:18-CV-00975-WJ-LF).
(D. N.M.).
Core Terms
Expedition, district court, Venture, gold, conspiracy,
treasure, time-barred, conversion, parties, limited
liability company, test result, quasi-contract, third-party,
artifacts, discovery, targets, summary judgment,
allegations, obligations, quotation, marks, limitations
period, proceeds, team, preliminary injunction,
conspiracy claim, exploration, limitations, excavation,
negotiated
Case Summary
Overview
HOLDINGS: [1]-Because appellant knew the essential
facts underpinning conspiracy, conversion, and tort
claims no later than February 2014 and did not file the
lawsuit until October 2018, the district court correctly
dismissed the claims as time-barred; [2]-The district
court did not err by concluding appellant was not a third-
party beneficiary of a Antiquity Recovery Agreement, as
the agreement did not indicate that the parties intended
to benefit him; [3]-The district court did not err by
dismissing contract and quasi-contract claims based on
a joint venture agreement against four individuals, as
they were not parties to and were therefore not liable
under the contract; [4]-Appeal of an order denying a
motion for a preliminary injunction was moot given that
the district court has entered a final judgment on the
merits and the effective time period of the requested
injunction had passed.
Outcome
Dismissal and summary judgment orders affirmed.
LexisNexis® Headnotes
Civil Procedure > Appeals > Appellate Briefs
Civil Procedure > Parties > Pro Se
Litigants > Pleading Standards
HN1[] Appeals, Appellate Briefs
An appellant's pro se status entitles him to a liberal
reading of his pleadings. Appellate courts thus make
some allowances for deficiencies, such as unfamiliarity
with pleading requirements, failure to cite appropriate
legal authority, and confusion of legal theories. But they
cannot take on the responsibility of serving as the
appellant's attorney in constructing arguments and
searching the record.
Civil Procedure > Appeals > Standards of
Review > De Novo Review
Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to State
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Claim
Civil Procedure > Appeals > Summary Judgment
Review > Standards of Review
HN2[] Standards of Review, De Novo Review
Appellate courts review de novo both the dismissal of a
complaint under Fed. R. Civ. P. 12(b)(6) for failure to
state a claim and a grant of summary judgment,
applying the same standards that applied in the district
court.
Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to State
Claim
Civil
Procedure > ... > Pleadings > Complaints > Require
ments for Complaint
HN3[] Motions to Dismiss, Failure to State Claim
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. In
conducting its review, the appellate court disregards
conclusory allegations, but accepts all well-pleaded
facts as true, viewing them in the light most favorable to
the plaintiffs, and drawing all reasonable inferences in
their favor. The appellate court's duty is to determine
whether the complaint sufficiently alleges facts
supporting all the elements necessary to establish an
entitlement to relief under the legal theory proposed.
Under the plausibility standard, dismissal for failure to
state a claim is proper only where it is obvious that the
plaintiff cannot prevail on the facts he has alleged.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Appropriateness
Civil Procedure > Judgments > Summary
Judgment > Entitlement as Matter of Law
Civil Procedure > Appeals > Summary Judgment
Review > Standards of Review
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of Law > Genuine
Disputes
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of Law > Legal
Entitlement
HN4[] Entitlement as Matter of Law,
Appropriateness
At the summary judgment stage, the appellate court
views facts in the light most favorable to the non-moving
party and draws all reasonable inferences in their favor.
Summary judgment is only appropriate when there are
no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law.
Contracts Law > Third
Parties > Beneficiaries > Claims & Enforcement
Contracts Law > ... > Beneficiaries > Types of Third
Party Beneficiaries > Intended Beneficiaries
HN5[] Beneficiaries, Claims & Enforcement
Under New Mexico law, one who is not a party to a
contract cannot maintain suit upon it. But a third party
may be a beneficiary of a contract, and as a beneficiary
may have an enforceable right against a party to a
contract. Whether a party is a third-party beneficiary
depends on if the parties to the contract intended to
benefit the third party. Such intent must appear either
from the contract itself or from some evidence that the
person claiming to be a third party beneficiary is an
intended beneficiary.
Business & Corporate Law > Limited Liability
Companies > Management Duties & Liabilities
Business & Corporate Law > Limited Liability
Companies > Member Duties & Liabilities
HN6[] Limited Liability Companies, Management
Duties & Liabilities
Under N.M. Stat. Ann. § 53-19-13, a member of a
limited liability company may be personally liable for his
own tortious acts, whether or not he was acting for the
company, but not for its contractual obligations.
853 Fed. Appx. 235, *235; 2021 U.S. App. LEXIS 11927, **1
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Governments > Legislation > Statute of
Limitations > Time Limitations
Torts > ... > Statute of Limitations > Begins to
Run > Continuing Violations
HN7[] Statute of Limitations, Time Limitations
Under the continuing wrong doctrine, where a tort
involves a continuing or repeated injury, the cause of
action accrues at, and limitations begin to run from, the
date of the last injury. But the doctrine cannot be
employed where the plaintiff's injury is definite and
discoverable, and nothing prevented the plaintiff from
coming forward to seek redress.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Appropriateness
Civil Procedure > Judgments > Summary
Judgment > Entitlement as Matter of Law
HN8[] Entitlement as Matter of Law,
Appropriateness
An evidentiary hearing is not required when the
plaintiff's claims can be decided as a matter of law and
the parties' pleadings establish that the defendants are
entitled to summary judgment.
Civil Procedure > Appeals > Appellate
Jurisdiction > Final Judgment Rule
Civil
Procedure > Remedies > Injunctions > Preliminary
& Temporary Injunctions
HN9[] Appellate Jurisdiction, Final Judgment Rule
A preliminary injunction is by its nature a temporary
measure intended to furnish provisional protection while
awaiting a final judgment on the merits and that entry of
final judgment mooted appeal of preliminary injunction.
Civil Procedure > Judicial
Officers > Judges > Discretionary Powers
Civil Procedure > Appeals > Frivolous Appeals
HN10[] Judges, Discretionary Powers
The decision whether to impose sanctions for a frivolous
appeal is discretionary.
Counsel: GALE ROBERTS, individually and d/b/a
"Gone Working" (Pro se), DBA "Gone Working", Plaintiff
- Appellant, Pro se, Pinedale, WY.
For GENERATION NEXT, LLC, ESTATE OF RICHARD
COOK, KATHARINE COOK FISHMAN, Defendants -
Appellees: Travis G. Jackson, Meghan D. Stanford,
Jackson Loman Stanford & Downey, Albuquerque, NM.
JOHN MELANCON, Defendant - Appellee, Pro se, Mt.
Enterprise, TX.
For EXPEDITION RESOURCES, LLC, HOWARD
TALKS, Defendants - Appellees: Carter Speer
McDonnell, Lance Elton Shurtleff, Gordon Rees Scully
Mansukhani, Denver, CO; Jared Daniel Albert Najjar,
Hall & Evans, Santa Fe, NM.
DONALD PATTERSON, Defendant - Appellee, Pro se,
Sanford, FL.
For EXPLORATION OPES LLC, Defendant - Appellee:
Lance Elton Shurtleff, Gordon Rees Scully Mansukhani,
Denver, CO.
Judges: Before MORITZ, BALDOCK, and EID, Circuit
Judges.
Opinion by: Bobby R. Baldock
Opinion
[*235] ORDER AND JUDGMENT*
This appeal involves a dispute about a hunt for buried
treasure. Appellant Gale Roberts, individually and for his
company, Gone Working ("GW"), filed the underlying
lawsuit claiming he agreed with the above-named
* 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.
853 Fed. Appx. 235, *235; 2021 U.S. App. LEXIS 11927, **1
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defendants and others to fund a treasure exploration
mission on Black Mesa, a hill area in New Mexico. [**2]
He claimed the defendants conspired to find the buried
treasure without his knowledge, relocate the cache
offsite, and launder the proceeds, thus depriving him of
his share. The district court dismissed some claims
against some defendants pursuant to Fed. R. Civ. P.
12(b)(6) and dismissed the remaining claims on
summary judgment. Roberts appeals only portions of
the dismissal and summary judgment orders.1 [*236]
Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
Factual Background
Richard Cook's company, Generation Next, LLC ("Gen
Next"), owned property on Black Mesa. Cook's
daughter, Katherine Fishman, was legal counsel for Gen
Next, and Paul Caster, another family member, was its
general manager. Cook died in 2016. Fishman is the
personal representative of his estate. When discussing
Cook, Fishman, Caster, and Cook's estate as a group,
we refer to then collectively as "the Cook Defendants."
Cook hired John Melancon, an archeologist, to help lay
claim to the gold and artifacts expected to be found on
Black Mesa. Melancon was one of four managing
members of Expedition Resources, LLC. In 2010,
Expedition Resources and Gen Next entered into a one-
year exclusive recovery agreement giving Expedition
Resources the right [**3] to access the property for
exploration. The other managing members of Expedition
Resources were Donald Patterson, Gerald Kemler, and
Howard Talks. Talks was a financier of gold-finding
expeditions, and Patterson and Kemler were both
treasure hunters. When discussing Expedition
Resources, Melancon, Patterson, Kemler, and Talks as
a group, we refer to them collectively as "the Expedition
Resources Defendants."2 Expedition Resources
1 Roberts has abandoned any arguments he might have made
regarding aspects of the dismissal and summary judgment
orders he did not expressly challenge on appeal. See Conroy
v. Vilsack, 707 F.3d 1163, 1170 (10th Cir. 2013). Accordingly,
we consider only the issues raised in the opening brief. See
Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th
Cir. 2004) ("Issues not raised in the opening brief are deemed
abandoned or waived." (internal quotation marks omitted)). We
deny Roberts' request for leave to re-file a brief of up to forty-
five pages. See Aplt. Opening Br. at 25, 28.
2 The original complaint named Exploration OPES, LLC,
another entity related to some or all of the Expedition
ultimately lacked the necessary funding and the
agreement expired without Expedition Resources ever
having entered the property.
According to the First Amended Complaint ("FAC")
Roberts and Expedition Resources entered into a Joint
Venture Agreement in November 2012 under which
Roberts agreed to finance and participate in an
expedition to search for and recover gold and artifacts
from Black Mesa in exchange for half of the discovered
cache. Patterson negotiated the agreement on behalf of
Expedition Resources and he and Roberts were the two
signatories. The agreement provided that Roberts would
be compensated only if gold and artifacts were found,
and that any capital he contributed was "risk capital,"
meaning he would be reimbursed out of the proceeds,
and Expedition [**4] Resources would have no liability
for capital costs if the venture was unsuccessful. Aplt.
App., Vol. II at 185. The FAC alleged that Melancon
brokered the agreement with the approval of Cook, who
owned the treasure maps that were to be used in the
expedition, and that Cook "agreed to honor another one-
year exclusive recovery agreement for a 50/50 split." Id.
Vol. I at 25.
In February 2013, several months after Expedition
Resources and Roberts entered into the Joint Venture
Agreement, Gen Next entered into an exclusive one-
year land access and recovery agreement with
Melancon's company, Antiquity Encounter, to search for
and recover gold and artifacts from Black Mesa ("the
Antiquity Recovery Agreement"). The FAC alleged that
Melancon secured this agreement with Gen Next "on
behalf of and in accordance with the Joint Venture
Agreement . . . Roberts had with Expedition." Id. at 21.
[*237] In March 2013, two gold targets were located
using equipment Roberts had purchased for the
expedition. As the targets were located, tension grew
between Roberts, Patterson, and Kemler, the three
treasure hunters on the expedition. According to the
FAC, unbeknownst to Roberts, Patterson and Kemler
located two additional gold targets on March 6 with the
help of [**5] William Floto, another treasure hunter.
Roberts alleged that Patterson, Kemler, and Floto dug
Resources Defendants, as a defendant, and although the First
Amended Complaint listed Exploration OPES in the caption, it
did not assert any claims against Exploration OPES, and
Roberts does not raise any claims on appeal involving
Exploration OPES. Accordingly, we do not discuss its alleged
involvement in the events giving rise to Roberts' claims either
in this background section or our analysis of the issues on
appeal.
853 Fed. Appx. 235, *235; 2021 U.S. App. LEXIS 11927, **1
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up the gold in one of those targets and moved it offsite,
then Kemler hid the March 6 test results and he and the
others manufactured false results to deceive Roberts
about the two targets they had discovered.
Roberts began his excavation on March 16, 2013.
"[S]everal days into the excavation," he discovered that
Kemler had tried to hide the March 6 test results. Id. at
30. Later that month, Patterson and Kemler began
transporting the gold and artifacts to Florida, where
Floto lived. Roberts informed the Cook Defendants by e-
m ail about the false test results Patterson, Kemler, and
Floto had given him. When the Cook Defendants did not
respond, Roberts concluded they were part of the
conspiracy to avoid giving Roberts a share of the
treasure Patterson, Kemler, and Floto had taken from
the property.
In September 2013, Cook and Roberts entered into a
verbal agreement allowing Roberts to finish the
excavation of the gold in the Black Mesa vaults. But the
relationship between Roberts and other members of the
team continued to deteriorate, and Caster and Fishman
refused to allow him on the Black Mesa property. [**6]
The Cook Defendants ultimately obtained a state court
restraining order limiting Roberts' communication with
them based on their claims that he had been acting
irrationally and ambushed the then 87-year old Cook at
his home in an attempt to gain entry to Black Mesa.
In February 2014, the Cook Defendants sent Roberts an
email indicating that their relationship with him had
ended, that no treasure had been found on Black Mesa,
and that they had "no intention of any further exploration
on Black Mesa." Id. at 22. Contrary to that
representation, however, Roberts alleged that soon after
sending the email, Gen Next, Fishman, and Caster
began removing gold and artifacts from one of the
vaults.
Also in February 2014, Melancon and Patterson
negotiated a "secret" verbal agreement with Cook and
Caster to use satellite technology obtained from a non-
party to further evaluate Black Mesa. Id. at 21. Fishman
"cancelled" the agreement, however, because the
Antiquity Recovery Agreement had not yet expired. Id.
at 39. Angry that Fishman had cancelled the agreement,
Patterson told Roberts he was no longer wanted on the
expedition and confirmed that Cook, Fishman, Caster,
Melancon, Patterson, Kemler, and Talks had all "joined
in [**7] a global conspiracy to get rid of . . . Roberts"
and deprive him of his share of the treasure. Id.
Patterson also "unknowingly confessed" to digging up
and removing gold from Black Mesa in March 2013. Id.
at 40.
Procedural Background
In February 2018, Roberts filed a lawsuit in the District
Court for the District of Wyoming. The court concluded it
lacked personal jurisdiction over the defendants and
subject-matter jurisdiction over the claims, and it
dismissed the complaint.
In October 2018, Roberts filed this nearly identical
lawsuit in the District Court for the District of New
Mexico, asserting claims for breach of contract, breach
of the implied covenant (quasi-contract), conspiracy,
conversion, tort (fraudulent inducement, [*238]
intentional misrepresentation, and tortious interference
with contract), and equitable relief (promissory estoppel
and quantum meruit/unjust enrichment) against the
defendants individually and in various groupings.3 The
contract and quasi-contract claims were based on both
the Joint Venture Agreement between Roberts and
Expedition Resources, and the Antiquity Recovery
Agreement between Gen Next and Antiquity Encounter.
Those claims were asserted against all defendants,
regardless [**8] of whether they were parties to the
contracts, and alleged that Roberts was entitled to
recover under the Antiquity Recovery Agreement as a
third-party beneficiary.
The defendants moved to dismiss all of the claims
against them under Fed. R. 12(b)(6) as either time-
barred or for failure to state a claim. As pertinent here,
the district court:
• dismissed the conspiracy claim against all
defendants both as time-barred and because civil
conspiracy is not actionable as a separate claim;
• dismissed all claims based in tort against all
defendants as time-barred;
• dismissed the contract and quasi-contract claims
based on the Antiquity Recovery Agreement
against all defendants because Roberts was neither
a party nor a third-party beneficiary to that
agreement;
• dismissed the contract and quasi-contract claims
against the Cook Defendants based on the Joint
3 The district court had diversity jurisdiction under 28 U.S.C. §
1332(a)(1) ("[D]istrict courts shall have original jurisdiction of
all civil actions where the matter in controversy exceeds the
sum or value of $75,000, exclusive of interest and costs, and
is between . . . citizens of different States.").
853 Fed. Appx. 235, *237; 2021 U.S. App. LEXIS 11927, **5
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Venture Agreement because they were not parties
to that agreement;4
• dismissed the contract and quasi-contract claims
based on the Joint Venture Agreement against
Melancon, Talks, Kemler, Floto, and Antiquity
Encounter because they were not involved in the
contract negotiations and were not parties to the
agreement, and Melancon's, Talks', [**9] and
Kemler's roles as managing members in Expedition
Resources did not subject them to liability for its
contractual obligations; and
• dismissed the equitable claims against all
defendants other than Patterson and Expedition
Resources both as time-barred and because the
dismissed defendants were not parties to contracts
with Roberts and the FAC did not specify what
promises and expectations those defendants
breached.
The only claims that survived the motions to dismiss
were the breach of contract, breach of the implied
covenant, promissory estoppel, and quantum
meruit/unjust enrichment claims against Expedition
Resources and Patterson, who negotiated and signed
the Joint Venture Agreement as a managing member of
Expedition Resources. The district court later granted
defendants' motions for summary judgment on those
claims, concluding (1) Roberts was not entitled to relief
under the Joint Venture Agreement because it expressly
provided he would be reimbursed and compensated
only if [*239] the expedition was successful, and he
presented no evidence supporting his assertion that
treasure was discovered on Black Mesa; (2) the implied
covenant could not be used to override the express
terms of [**10] the Joint Venture Agreement; and (3)
equitable relief was not available for conduct governed
by contract.
Discussion
1. Standard of Review
4 The FAC also asserted claims against the Cook Defendants
for breach of contract based on the September 2013 verbal
agreement between Cook and Roberts, and breach of an
implied-in-fact contract based on Roberts' agreement to sign a
no-contact order in exchange for Fishman's and Caster's
promises to facilitate a face-to-face meeting between Roberts
and Cook. Roberts does not challenge the adverse rulings
involving these claims, so we do not address them.
HN1[] As an initial matter, we recognize that Roberts'
pro se status entitles him to a liberal reading of his
pleadings. Ledbetter v. City of Topeka, 318 F.3d 1183,
1187 (10th Cir. 2003). We thus make some allowances
for deficiencies, such as unfamiliarity with pleading
requirements, failure to cite appropriate legal authority,
and confusion of legal theories. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005). But we "cannot take on the responsibility of
serving as [his] attorney in constructing arguments and
searching the record." Id.; see also Whitney v. New
Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997)
(explaining that we "will not supply additional factual
allegations to round out [a pro se litigant's] complaint or
construct a legal theory on [his] behalf").
HN2[] We review de novo both the dismissal of a
complaint under Rule 12(b)(6) for failure to state a claim
and the grant of summary judgment, applying the same
standards that applied in the district court. Brooks v.
Mentor Worldwide LLC, 985 F.3d 1272, 1278 (10th Cir.
2021) (Rule 12(b)(6) dismissal); Rocky Mountain
Prestress, LLC v. Liberty Mut. Fire Ins. Co., 960 F.3d
1255, 1259 (10th Cir. 2020) (summary judgment).
HN3[] "To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
173 L. Ed. 2d 868 (2009) (internal quotation marks
omitted). In conducting our review, we disregard
conclusory [**11] allegations, but accept all well-
pleaded facts as true, view them in the light most
favorable to Plaintiffs, and draw all reasonable
inferences in their favor. Brooks, 985 F.3d at 1281. Our
duty is to "determine whether the complaint sufficiently
alleges facts supporting all the elements necessary to
establish an entitlement to relief under the legal theory
proposed." Forest Guardians v. Forsgren, 478 F.3d
1149, 1160 (10th Cir. 2007). Under the plausibility
standard, dismissal for failure to state a claim is "proper
only where it is obvious that the plaintiff cannot prevail
on the facts he has alleged." Kay v. Bemis, 500 F.3d
1214, 1217 (10th Cir. 2007) (internal quotation marks
omitted).
HN4[] At the summary judgment stage, we "view facts
in the light most favorable to the non-moving party and
draw all reasonable inferences in [their] favor." Dewitt v.
Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017)
(ellipsis and internal quotation marks omitted).
"Summary judgment is only appropriate when there are
no genuine issues of material fact and the moving party
853 Fed. Appx. 235, *238; 2021 U.S. App. LEXIS 11927, **8
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is entitled to judgment as a matter of law." Foster v.
Mountain Coal Co., 830 F.3d 1178, 1186 (10th Cir.
2016) (internal quotation marks omitted).
2. Rejection of Third-Party Beneficiary Theory
Roberts first contends the district court erred by
concluding he was not a third-party beneficiary of the
Antiquity Recovery Agreement.5 We disagree.
[*240] HN5[] Under New Mexico law, "one who is
not a party to a contract [**12] cannot maintain suit
upon it." Fleet Mortg. Corp. v. Schuster, 1991- NMSC
046, 112 N.M. 48, 811 P.2d 81, 82 (N.M. 1991). But "[a]
third party may be a beneficiary of [a] contract, and as a
beneficiary may have an enforceable right against a
party to a contract." Id. "Whether a party is a third-party
beneficiary depends on if the parties to the contract
intended to benefit the third party." Id. at 82-83. "Such
intent must appear either from the contract itself or from
some evidence that the person claiming to be a third
party beneficiary is an intended beneficiary." Valdez v.
Cillessen & Son, Inc., 1987- NMSC 015, 105 N.M. 575,
734 P.2d 1258, 1264 (N.M. 1987).
The signatories to the Antiquity Recovery Agreement
were Cook and Fishman as managers of Gen Next, and
Melancon for Antiquity Encounter. The agreement gave
Melancon and Antiquity Encounter "the exclusive right to
access and perform a non-destructive geophysical
survey(s) on Black Mesa" from February 2013 through
February 2014, and provided for a fifty-fifty split between
Gen Next and Antiquity Encounter of any "valuables and
artifacts."6 Aplt. App., Vol. I at 70-71. The agreement
identified Roberts as one of Melancon's team members,
and required Gen Next to protect the confidentiality of
Roberts' "proprietary geophysical technology." Id. at 72.
But the agreement did not address how Melancon would
5 Roberts framed this argument as a due process argument,
but he did not provide any legal support for the assertion that
the district court's adverse ruling on the third-party beneficiary
issue violated his constitutional right to due process.
Accordingly, we disregard that aspect of the argument.
6 In evaluating whether Roberts' factual allegations meet the
plausibility standard, we consider both his complaint and the
documents attached as exhibits to the complaint, including the
Antiquity Recovery Agreement. See Oxendine v. Kaplan, 241
F.3d 1272, 1275 (10th Cir. 2001); see also Fed. R. Civ. P.
10(c) ("A copy of a written instrument that is an exhibit to a
pleading is a part of the pleading for all purposes.").
compensate his team, much less suggest Roberts or
any other [**13] team member would share in the fifty-
fifty split between Gen Next and Antiquity Resources.
We agree with the district court's conclusion that the
contract does not indicate that the parties intended to
benefit Roberts.7 Contrary to his assertion, neither the
fact that Fishman and Caster knew about the Joint
Venture Agreement when they signed the Antiquity
Resources Agreement, nor Melancon's alleged promise
"that [Roberts'] interests, as the financier [of the
expedition under the Joint Venture Agreement] would be
protected," Aplt. Opening Br. at 8, establishes that
Roberts was a third-party beneficiary of the Antiquity
Resources Agreement. Cook's and Fishman's
awareness of the Joint Venture Agreement and of
Roberts' role as financier of the expedition is simply not
a basis for concluding they intended to make him a
beneficiary of the Antiquity Recovery Agreement. And
while the two agreements were interrelated—the Joint
Venture Agreement governed the conduct of the Black
Mesa expedition and the Antiquity Recovery Agreement
gave the team access to the property and governed
what they could do there—the fact that both agreements
were necessary for the expedition to happen
does [**14] not make the parties to one agreement
third-party beneficiaries of the [*241] other. Moreover,
any promise Melancon made to protect Roberts'
interests could not make Roberts a third-party
beneficiary of the Antiquity Recovery Agreement without
the agreement of the other parties to that contract. Such
a promise might have affected how the proceeds of any
discovered cache would have been divided between
Roberts and Expedition Resources under the Joint
Venture Agreement, but it would not have affected the
division of proceeds between Gen Next and Antiquity
Resources under the Antiquity Recovery Agreement.
3. Dismissal of Contract and Quasi-Contract Claims
Against Melancon, Talks, Kemler, and Floto
Roberts next contends the district court erred by
7 The district court held that "[a]t most" the provision identifying
Roberts as a member of Melancon's team made him "an
incidental beneficiary"—someone who has no contractual
rights under the contract but who "'will derive a benefit from its
performance.'" Aplt. App., Vol. I at 339 (quoting Fleet Mortg,
811 P.2d at 83 (holding incidental beneficiary "had no right to
recover" under contract)). The issue before us is whether
Roberts was a third-party beneficiary, not whether he was an
incidental beneficiary, so we need not address that issue.
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dismissing the contract and quasi-contract claims based
on the Joint Venture Agreement against Melancon,
Talks, Kemler, and Floto. Again, we disagree.
Expedition Resources is a limited liability company.
Under New Mexico law:
the debts, obligations and liabilities of a limited
liability company, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and
liabilities of the . . . company. No member or
manager of a limited liability [**15] company . . .
shall be obligated personally for any debt,
obligation or liability of the . . . company solely by
reason of being a member or manager of the . . .
company . . . . A person may be liable for any act or
omission performed in his capacity as a manager of
a limited liability company if there is a basis for
liability. Nothing in this section shall be construed to
immunize any person from liability for the
consequences of his own acts or omissions for
which he otherwise may be liable.
N.M. Stat. Ann. § 53-19-13. HN6[] Under this statute,
a member of a limited liability company may be
personally liable for his own tortious acts, whether or not
he was acting for the company, but not for its
contractual obligations.
The allegations in the FAC establish that the Joint
Venture Agreement was between Expedition Resources
and Roberts. Melancon, Talks, Kemler, and Floto were
not parties to and were therefore not liable under the
contract, and Melancon, Talks, and Kemler cannot be
held personally liable for Expedition Resources'
obligations under the contract. See id. Accordingly, the
district court correctly dismissed the contract and quasi-
contract claims against these defendants. See id. § 53-
19-14 (providing that subject [**16] to an exception not
applicable here, "[a] member of a limited liability
company is not a proper party to a proceeding against
the limited liability company solely by reason of being a
member of the limited liability company"); see also
Kreischer v. Armijo, 1994-NMCA-118, 118 N.M. 671,
884 P.2d 827, 829 (N.M. Ct. App. 1994) (explaining that
agents of a corporate entity cannot be held personally
liable for its contractual obligations and affirming
dismissal of claim against corporate agent based on the
company's contract).
4. Dismissal of Conspiracy, Conversion, and Tort
Claims as Time-Barred
We also reject Roberts' contention that the district court
erred by dismissing the conspiracy, conversion, and tort
claims as time-barred.
The basis for these claims was as follows:
• Conspiracy: The FAC alleged the conspiracy
claim against all defendants individually and in
various groupings, and although the specific
conduct underpinning the claim varied from
defendant to defendant, it was based on the same
basic theory as to all of [*242] them—that they
schemed to prevent Roberts from discovering
hidden reserves of gold in order to deprive him of
his share of the treasure. Based on the factual
allegations in the FAC, the court determined that
the claim was based on events that occurred
before [**17] September 2013.
• Conversion: The conversion claim was asserted
against all defendants and was based on the
alleged discovery of treasure on Black Mesa, its
removal from the property, and the laundering and
division of the proceeds among the defendants, all
without Roberts' knowledge.
• Fraudulent Inducement: The claim against the
Expedition Resources Defendants alleged that they
made false representations to Roberts in November
2012 when they solicited his participation in an
expedition on Black Mesa. The claim against the
Cook Defendants alleged that they manipulated
Roberts into signing the temporary restraining order
in October 2013 by telling him they would facilitate
a face-to-face meeting between him and Cook.
Floto and Antiquity Resources were not named in
the fraudulent inducement claim.
• Intentional Misrepresentation: The intentional
misrepresentation claim against Patterson and
Kemler alleged that they gave Roberts misleading
test results and other data to hide their discovery of
additional gold targets in March 2013. The claim
against the Cook Defendants was based on the
February 2014 email telling Roberts that the
expedition had found no treasure and that they did
not intend [**18] to conduct further exploration on
Black Mesa. The other defendants were not named
in this claim.
• Tortious Interference with Contract: This claim
was asserted only against Floto, Fishman, and
Caster. It alleged that Floto located and removed
treasure from Black Mesa in March 2013 "without
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giving any of the existing agreements and contracts
any consideration," Aplt. App., Vol. I at 51, and that
in September 2013, Fishman and Caster interfered
with the verbal agreement between Roberts and
Cook.
The district court concluded, and Roberts does not
dispute, that the applicable limitations periods were four
years for the conversion claim and any fraud-based
claim, three years for the other tort claims, and three or
four years for the conspiracy claim, depending on
whether it was grounded in tort or fraud. See N.M. Stat.
Ann. § 37-1-4 (establishing four-year limitations period
for conversion and fraud claims); id. § 37-1-8
(establishing three-year limitations period for personal
injury actions); Peralta v. Peralta, 2006- NMCA 033, 139
N.M. 231, 131 P.3d 81, 84 (N.M. Ct. App. 2005)
(applying personal injury statute of limitations period to
tortious interference with expected inheritance claim).
Based on the factual allegations in the FAC, the court
concluded that all of these claims accrued by February
2014, and that because Roberts [**19] did not file his
complaint until October 2018, the claims were all time-
barred under either a three- or four-year limitations
period.
In so concluding, the district court rejected Roberts'
arguments that the limitations periods did not apply
under New Mexico's savings statute and that the claims
were timely under the discovery rule. Roberts reasserts
those arguments on appeal and we reject them too.
New Mexico's savings statute provides:
If, after the commencement of an action, the
plaintiff fail[s] therein for any cause, except
negligence in its prosecution, and [*243] a new
suit be commenced within six months thereafter,
the second suit shall, for the purposes herein
contemplated, be deemed a continuation of the
first.
N.M. Stat. Ann. § 37-1-14. Relying on this statute,
Roberts maintains that his claims were timely because
he filed the complaint in this case within six months after
the dismissal of the Wyoming suit. The district court
disagreed, concluding that the savings statute was
inapplicable both because most of Roberts' claims were
already time-barred when he filed the Wyoming suit,
and because his initial filing in the wrong forum
constituted "negligence in prosecution." See Barbeau v.
Hoppenrath, 2001- NMCA 077, 131 N.M. 124, 33 P.3d
675, 679 (N.M. Ct. App. 2001) (holding plaintiff's
unexcused [**20] failure to file suit in the correct
jurisdiction was negligence that precluded application of
the savings statute). Roberts take issue with the latter
conclusion, maintaining that it was reasonable for him to
file suit in Wyoming because he is a Wyoming resident
and was in Wyoming when he negotiated the Joint
Venture Agreement. But we agree with the district
court's determination that, even as a pro se litigant,
Roberts could not reasonably have believed Wyoming
had personal jurisdiction over the defendants and
subject matter jurisdiction over the lawsuit given that
none of them lived in or had the requisite contacts with
Wyoming and the relevant events all happened in New
Mexico. See id. (savings statute inapplicable where the
complaint "on its face defeated subject matter
jurisdiction," there was no basis for personal jurisdiction
over the defendants, and the flawed choice of forum
was not "an innocent mistake or an erroneous guess at
an elusive jurisdictional fact known only to the
defendants or any other circumstance that might serve
to excuse what otherwise appears clearly to be
negligence").
As for the discovery rule, Roberts maintains he did not
discover all of the facts relevant [**21] to the conspiracy
and conversion claims until as late as 2018 and that the
district court thus erred by dismissing the claims as
time-barred. The district court agreed that under the
discovery rule, the claims accrued when Roberts knew
or should have known the essential facts giving rise to
the claims. See State ex rel. Pub. Emps. Ret. Ass'n v.
Longacre, 2002- NMSC 033, 133 N.M. 20, 59 P.3d 500,
507 (N.M. 2002) (holding that the accrual date for a New
Mexico statute of limitations is "usually . . . the date of
discovery"). But the court rejected his delayed discovery
argument, pointing to the allegations in the FAC that
Roberts' excavation began in mid-March 2013, and that
the "team was several days into the excavation when
[he] discovered that . . . Kemler had tried to hide the
[March 6] test results." Aplt. App., Vol. I at 30; see also
id. (alleging that after discovering the hidden test
results, Roberts found "significant ground disturbance"
at what appeared to be the site of the new gold targets).
Roberts does not dispute that he discovered the hidden
test results in March 2013, and he acknowledges that
"the majority of the conspiracies began" in that
timeframe. Aplt. Opening Br. at 11. Instead, relying on
criminal statutes and caselaw inapplicable here, he
contends the conspiracy claim alleged an
ongoing [**22] conspiracy that none of the defendants
withdrew from, that the conversion "is still happening to
this day," id. at 13, and that the statute of limitations did
not start running until sometime in 2018, when Roberts
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learned more details about the defendants' actions.8
Construing [*244] these argument liberally, we assume
Roberts is invoking the continuing wrong doctrine, which
can be used to toll a statute of limitations. See Tiberi v.
Cigna Corp., 89 F.3d 1423, 1431 (10th Cir. 1996)
(construing New Mexico law and applying the doctrine
to toll the statute of limitations for fraud and negligent
misrepresentation). HN7[] Under the continuing wrong
doctrine, "where a tort involves a continuing or repeated
injury, the cause of action accrues at, and limitations
begin to run from, the date of the last injury." Id. at 1430.
But "the doctrine cannot be employed where the
plaintiff's injury is definite and discoverable, and nothing
prevented the plaintiff from coming forward to seek
redress." Id. at 1431 (internal quotation marks omitted).
Roberts does not dispute that he knew in March 2013
that Patterson and Kemler had located the two
additional gold targets and tried to hide the test results,
and the allegations in the FAC establish that by
February 2014, he knew treasure had been removed
from [**23] the property and sold, that the proceeds
had been laundered, that he was barred from the Black
Mesa, and that none of the defendants intended to
include him in any further exploration efforts. Roberts'
injury was thus "definite and discoverable" by February
2014. See id. And while he may have learned more
details about defendants' alleged wrongdoing between
2014 and 2018, that information did not give rise to a
"continuing or repeated injury," as required for tolling
under the continuing wrong doctrine. See id. at 1430.
Because Roberts knew the essential facts underpinning
these claims no later than February 2014 and did not file
this lawsuit until October 2018, the district court
correctly dismissed the claims as time-barred.
Finally, we acknowledge Roberts' one-sentence
argument that the district court erred by denying his
request under Fed. R. Civ. P. 60(b) to reopen discovery
and to allow him to "submit newly discovered evidence .
. . that was paramount in helping prove" his conspiracy
and conversion claims. Aplt. Opening Br. at 16. We
decline to address this unsupported and conclusory
claim. See Fed. R. App. P. 28(a)(8)(A) (requiring
citations to authorities supporting each argument);
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.
2007) (declining to consider arguments inadequately
presented [**24] in appellant's opening brief). In any
8 The district court did not expressly address the ongoing
conspiracy and conversion argument in its dismissal orders,
but implicitly rejected it in concluding that the claims were
time-barred.
event, new facts about the substance of the claims
would not have affected the district court's conclusion
that the claims were time-barred.
5. Dismissal of Conspiracy Claim as Not Separately
Actionable
The district court also dismissed the conspiracy claim on
the ground that under New Mexico law, civil conspiracy
is not actionable as a separate claim. See Ettenson v.
Burke, 2001- NMCA 003, 130 N.M. 67, 17 P.3d 440,
445, 448 (N.M. 2000) (explaining that civil conspiracy is
a "derivative claim" that "requires an overt tortious act
independent of the conspiracy," and that "[w]ithout an
actionable civil case against one of the conspirators, . . .
an agreement, no matter how conspiratorial in nature, is
not a separate, actionable offense" (internal quotation
marks omitted)). Roberts challenges that ruling, but
because we have concluded the court properly
dismissed the claim as time-barred, we need not
address the parties' arguments about this alternative
basis for dismissal. See Trevizo v. Adams, 455 F.3d
1155, 1160 n.3 (10th Cir. 2006).
6. Grant of Summary Judgment Without a Hearing
Roberts does not challenge the substance of the district
court's summary judgment order but argues that the
court erred by denying his request for a hearing on the
motion. HN8[] An evidentiary hearing is [*245] not
required [**25] when the plaintiff's claims can be
decided as a matter of law and the parties' pleadings
establish that the defendants are entitled to summary
judgment. See Kennedy v. Meacham, 540 F.2d 1057,
1061 n.3 (10th Cir. 1976) (explaining that a hearing "is
[not] required in every instance"). Roberts maintains that
a hearing would have been "beneficial," Aplt. Opening
Br. at 16, but he has not established that a hearing was
necessary and that the district court abused its
discretion by not holding one.
7. Denial of Motion for Preliminary Injunction
After the district court entered its orders dismissing most
of Roberts' claims against most defendants, he filed a
motion seeking an injunction to prevent the removal of
any gold and artifacts from Black Mesa until the case
was fully litigated in both the district court and on
appeal. The district court denied the motion, concluding
Roberts had not shown a likelihood of success on the
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merits. See Colorado v. United States EPA, 989 F.3d
874, 883 (10th Cir. 2021) (setting forth requirements for
obtaining preliminary injunction that changes the status
quo).
HN9[] Roberts takes issue with that ruling, but his
appeal of that order is moot given that the district court
has entered a final judgment on the merits and the
effective time period of the requested injunction has
passed. See [**26] United States ex rel. Bergen v.
Lawrence, 848 F.2d 1502, 1512 (10th Cir. 1988)
(explaining that a preliminary injunction is by its nature a
temporary measure intended to furnish provisional
protection while awaiting a final judgment on the merits
and that entry of final judgment mooted appeal of
preliminary injunction); Baker v. Bray, 701 F.2d 119, 122
(10th Cir. 1983) (dismissing appeal of preliminary
injunction ruling as moot where district court later
dismissed the underlying claim).
8. Additional Issues
Roberts asks this court to "prevent . . . Patterson from
making threats to [Roberts'] witnesses" and "posting
derogatory statements about . . . Roberts" on social
media. Aplt. Opening Br. at 26. This court does not have
jurisdiction to order such relief. Accordingly, the request
is denied.
The Cook Defendants argue that this appeal is frivolous
and seek an award of damages and costs under Fed. R.
App. P. 38, and attorney's fees under 28 U.S.C. § 1927.
Initially, we note that there is a split "among the circuits
on the question whether § 1927 applies to pro se
litigants." See Alexander v. United States, 121 F.3d 312,
316 (7th Cir. 1997). HN10[] Although we have not
squarely decided that question, we have commented
that § 1927 "is a natural outgrowth of the inherent
authority of a court to assess costs and attorney's fees
against a party who has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons" and that [**27]
"awards under § 1927 are made only against attorneys."
Hutchinson v. Pfeil, 208 F.3d 1180, 1186 n.9 (10th Cir.
2000) (ellipsis and internal quotation marks omitted). In
any event, the decision whether to impose sanctions for
a frivolous appeal is discretionary, see Roth v. Green,
466 F.3d 1179, 1188 (10th Cir. 2006), and we decline to
do so here.
Conclusion
The district court's dismissal and summary judgment
orders are affirmed.
Entered for the Court
Bobby R. Baldock
Circuit Judge
End of Document
853 Fed. Appx. 235, *245; 2021 U.S. App. LEXIS 11927, **25
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Neutral
As of: May 13, 2022 4:45 PM Z
Mehdipour v. Denwalt-Hammond
United States Court of Appeals for the Tenth Circuit
May 14, 2019, Filed
No. 18-6161
Reporter
773 Fed. Appx. 463 *; 2019 U.S. App. LEXIS 14267 **
FARAMARZ MEHDIPOUR, Plaintiff - Appellant, v. LISA
DENWALT-HAMMOND; C. WESLEY LANE, II; DAVID
PRATER, Defendants - Appellees.
Notice: PLEASE REFER TO FEDERAL RULES OF
APPELLATE PROCEDURE RULE 32.1 GOVERNING
THE CITATION TO UNPUBLISHED OPINIONS.
Subsequent History: Motion denied by Mehdipour v.
Denwalt-Hammond, 2020 U.S. LEXIS 3182 (U.S., June
15, 2020)
Prior History: [**1] (D.C. No. 5:18-CV-00268-SLP)
(W.D. Okla.).
Mehdipour v. Denwalt-Hammond, 2018 U.S. Dist.
LEXIS 104128 (W.D. Okla., June 21, 2018)
Core Terms
district court, invalidity, notice of appeal, sentence
Case Summary
Overview
HOLDINGS: [1]-The inmate did not file his Fed. R. Civ.
P. 60(b) motion Until August 7, 2018, which was 47
days after entry of the June 21 judgment, and it did not
toll the time to appeal the underlying judgment, and the
appellate court lacked jurisdiction to review that
judgment; [2]-The inmate's notice of appeal was timely
and the appellate court had jurisdiction to review that
order; [3]-Success on the merits of the inmate's 42
U.S.C.S. § 1983 claims that the defendants maliciously
prosecuted him, falsified court documents, tampered
with court records, treated him differently than other
similarly situated defendants, failed to correct those
violations, and deprived him of a preliminary hearing,
which resulted in the state trial court proceeding without
jurisdiction, would necessarily imply the invalidity of his
conviction.
Outcome
Judgment affirmed.
LexisNexis® Headnotes
Civil Procedure > Appeals > Reviewability of Lower
Court Decisions > Timing of Appeals
HN1[] Reviewability of Lower Court Decisions,
Timing of Appeals
The timely filing of a notice of appeal in a civil case is a
jurisdictional requirement. And a notice of appeal in a
civil case must be filed within thirty days after the entry
of the judgment, order or decree being appealed, 28
U.S.C.S. § 2107(a). Although a Fed. R. Civ. P. 60
motion can toll the running of the 30-day appeal period
until the district court disposes of the motion, it does so
only if filed no later than 28 days after the judgment is
entered, Fed. R. App. P. 4(a)(4)(A)(vi).
Civil Procedure > Appeals > Standards of
Review > Abuse of Discretion
Civil Procedure > Parties > Pro Se
Litigants > Pleading Standards
HN2[] Standards of Review, Abuse of Discretion
The appellate court reviews the denial of a Fed. R. Civ.
P. 60(b) motion for abuse of discretion. The appellate
court affords a plaintiff's pro se filings a liberal
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construction, but it does not act as his advocate.
Judges: Before BRISCOE, McKAY, and LUCERO,
Circuit Judges.
Opinion by: Monroe G. McKay
Opinion
[*464] ORDER AND JUDGMENT*
Mr. Faramarz Mehdipour, an Oklahoma state prisoner
proceeding pro se, appeals the district court's judgment
dismissing without prejudice a civil rights action he filed
under 42 U.S.C. § 1983, and the court's denial of his
Fed. R. Civ. P. 60(b) motion. We lack jurisdiction to
review the underlying judgment because Mr.
Mehdipour's notice of appeal was untimely. We have
jurisdiction under 28 U.S.C. § 1291 to review the denial
of his Rule 60(b) motion, and we affirm that denial.
I. Background
In 1993, Mr. Mehdipour was convicted in Oklahoma
state court of intimidating a witness. That conviction was
overturned on direct appeal. In 1996, he was convicted
of attempting to intimidate a witness after conviction of
two or more felonies and sentenced to sixty years'
imprisonment. That conviction and sentenced were
affirmed. See Mehdipour v. State, 1998 OK CR 23, 956
P.2d 911 (Okla. Crim. App. 1998). Mr. Mehdipour has
been unsuccessful in his attempts to overturn his
conviction in state post-conviction and federal habeas
corpus proceedings. See Mehdipour v. Okla. Ct. of Civil
Appeals, 62 F. App'x 203, 209-10 (10th Cir. 2003)
(recounting litigation history and denying certificate of
appealability from denial of second habeas petition).
In 2018, Mr. Mehdipour filed a pro se § 1983
complaint [**2] against the defendants. Two of them,
* 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.
Ms. Lisa Denwalt-Hammond and Mr. C. Wesley Lane, II,
were Oklahoma County assistant district attorneys
involved in the prosecutions referred to above, and the
third, Mr. David Prater, was the Oklahoma County
district attorney at the time of those prosecutions. Mr.
Mehdipour alleged that in the criminal proceedings
against him, defendants violated his constitutional rights
by maliciously prosecuting him, falsifying court
documents, tampering with court records, treating him
differently than other similarly situated defendants, and
failing to correct those violations. He also alleged
constitutional violations based on the lack of preliminary
hearings at either trial, which allegedly deprived the
state court of jurisdiction. He sought damages and
declaratory relief.
A magistrate judge screened Mr. Mehdipour's complaint
pursuant to 28 U.S.C. § 1915A(a) [*465] and (b) and
provided the district court with a report and
recommendation (R&R). The magistrate judge
recommended dismissing the claims against Mr. Lane
with prejudice on the basis of absolute prosecutorial
immunity, and dismissing the claims against the other
two defendants, and any claims generally challenging
the 1996 conviction, [**3] as barred by Heck v.
Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed.
2d 383 (1994). In Heck, the Supreme Court held that a §
1983 suit for damages caused by an allegedly
unconstitutional conviction or imprisonment or by other
unlawful actions is not cognizable if "a judgment in favor
of the plaintiff would necessarily imply the invalidity of
his conviction or sentence," unless the plaintiff proves
the conviction or sentence has been invalidated. Id. at
486-87.1
Mr. Mehdipour timely objected to the R&R arguing that
Mr. Lane was not entitled to absolute prosecutorial
immunity. He did not address the application of Heck
other than a conclusory assertion that he was "not
attempting to overcome his conviction in this action" but
would instead be challenging his conviction "in a
separate action soon to be filed in [the federal district
court]." R. at 53. The district court declined to dismiss
the claims against Mr. Lane based on prosecutorial
immunity but concluded that Heck barred all claims
against all three defendants. The district court noted that
in Mehdipour v. Chapel, 12 F. App'x 810, 813-14 (10th
1 In Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S. Ct. 1242, 161
L. Ed. 2d 253 (2005), the Supreme Court made clear that
Heck applies "no matter the relief sought (damages or
equitable relief)." 3
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Cir. 2001), this court had determined that Heck barred
virtually identical § 1983 claims Mr. Mehdipour raised in
that case. The district court also reasoned that Mr.
Mehdipour's assertion that he intended to challenge his
conviction and sentence [**4] in a separate action
underscored imposing the Heck bar to his § 1983
claims. Consequently, the district court dismissed the
action without prejudice on June 21, 2018 and entered a
separate judgment the same day.
On August 7, 2018,2 Mr. Mehdipour filed a Rule 60
motion in which he argued that Heck did not apply to his
case because he was only challenging the process used
to convict him, not the result. The district court
construed the motion as seeking relief under Rule
60(b)(1) and (b)(6) and denied it. The court first
determined that Mr. Mehdipour's attempt to distinguish
Heck came too late given his failure to object to the
magistrate judge's recommendation that dismissal under
Heck was warranted. In the alternative, the district court
concluded that the attempt to distinguish Heck lacked
merit because, as noted in its dismissal order, this court
had "found virtually identical § 1983 claims previously
raised by [Mr. Mehdipour] against one or more of the
Defendants to be barred by Heck." R. at 76 (citing
Mehdipour, 12 F. App'x at 813). Finally, the district court
denied the Rule 60(b) motion to the extent Mr.
Mehdipour otherwise attempted to advance new claims
or make other arguments not raised in his objection to
the R&R.
II. Appellate Jurisdiction
HN1[] "[T]he timely filing [**5] of a notice of appeal in
a civil case is a jurisdictional [*466] requirement."
Bowles v. Russell, 551 U.S. 205, 214, 127 S. Ct. 2360,
168 L. Ed. 2d 96 (2007). And a notice of appeal in a civil
case must be filed "within thirty days after the entry of
[the] judgment, order or decree" being appealed. 28
U.S.C. § 2107(a). Mr. Mehdipour filed a notice of appeal
on September 14, 2018, naming both the district court's
underlying judgment and the denial of his Rule 60(b)
motion. That was more than thirty days after the district
court's June 21, 2018 judgment. Although a Rule 60
2 Although Mr. Mehdipour's Rule 60(b) motion was not actually
filed until August 9, 2018, he placed it in the prison's system
for processing legal mail, postage prepaid, on August 7, 2018.
Under the prison mailbox rule, the motion is deemed filed on
August 7. However, the two-day differential is ultimately
immaterial to the disposition of this appeal.
motion can toll the running of the 30-day appeal period
until the district court disposes of the motion, it does so
only if "filed no later than 28 days after the judgment is
entered." Fed. R. App. P. 4(a)(4)(A)(vi). Mr. Mehdipour
did not file his Rule 60(b) motion until August 7, 2018,
which was 47 days after entry of the June 21 judgment.
Therefore, it did not toll the time to appeal the
underlying judgment, and we lack jurisdiction to review
that judgment.
Mr. Mehdipour's notice of appeal was filed 29 days after
the entry of the order denying his Rule 60(b) motion on
August 16, 2018, so it was timely under § 2107(a). We
therefore have jurisdiction to review that order, but "not
the underlying decision itself." Servants of the Paraclete
v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000).
III. Merits
HN2[] We review the denial of a Rule 60(b) motion for
abuse of discretion. Id. We afford [**6] Mr. Mehdipour's
pro se filings a liberal construction, but we do not act as
his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008).
We need not decide whether the district court abused its
discretion in denying Mr. Mehdipour's Rule 60(b) motion
on the ground that he advanced arguments he had not
raised in his objections to the magistrate judge's R&R.
Instead, we agree with the district court that Mr.
Mehdipour failed to distinguish Heck. On appeal, Mr.
Mehdipour emphasizes that his claims are about "the
process (due process), not the result." Aplt. Opening Br.
at 2. And he insists that he did not seek to invalidate his
conviction but instead sought damages based on
defendants' deprivation of his constitutional rights to
adequate process.3 This line of argument overlooks that
Heck bars even those § 1983 claims that "necessarily
imply the invalidity of [a] conviction." Heck, 512 U.S. at
487 (emphasis added). Actual invalidation is not
required. Success on the merits of Mr. Mehdipour's §
1983 claims that the defendants maliciously prosecuted
him, falsified court documents, tampered with court
records, treated him differently than other similarly
situated defendants, failed to correct those violations,
and deprived him of a preliminary hearing, which
resulted in the state [**7] trial court proceeding without
3 Mr. Mehdipour also argues that the district court erred in
concluding that all three defendants were entitled to absolute
prosecutorial immunity, but the court did no such thing. We
therefore do not address this argument.
773 Fed. Appx. 463, *465; 2019 U.S. App. LEXIS 14267, **3
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jurisdiction, would necessarily imply the invalidity of his
conviction. We therefore conclude that the district court
did not abuse its discretion in denying Mr. Mehdipour's
Rule 60(b) motion.
CONCLUSION
We affirm the district court's denial of Mr. Mehdipour's
Rule 60(b) motion and otherwise dismiss this appeal for
lack of jurisdiction. We deny Mr. Mehdipour's motion for
a default judgment.
Entered for the Court
Monroe G. McKay
Circuit Judge
End of Document
773 Fed. Appx. 463, *466; 2019 U.S. App. LEXIS 14267, **7
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Neutral
As of: May 13, 2022 4:47 PM Z
Alexander v. Lucas
United States Court of Appeals for the Tenth Circuit
December 21, 2007, Filed
No. 07-6106
Reporter
259 Fed. Appx. 145 *; 2007 U.S. App. LEXIS 29745 **
ALVIN LYNN ALEXANDER, Plaintiff-Appellant, v.
HONORABLE TOM A. LUCAS; HONORABLE GARY L.
LUMPKIN; CLEVELAND COUNTY DISTRICT COURT;
and OKLAHOMA COURT OF CRIMINAL APPEALS,
Defendants-Appellees.
Notice: PLEASE REFER TO FEDERAL RULES OF
APPELLATE PROCEDURE RULE 32.1 GOVERNING
THE CITATION TO UNPUBLISHED OPINIONS.
Subsequent History: US Supreme Court certiorari
denied by Alexander v. Lucas, 128 S. Ct. 1486, 170 L.
Ed. 2d 306, 2008 U.S. LEXIS 2294 (U.S., Mar. 3, 2008)
Prior History: [**1] (D.C. No. CV-06-1386-HE). (W.D.
Okla.).
Alexander v. Lucas, 2007 U.S. Dist. LEXIS 26043 (W.D.
Okla., Apr. 9, 2007)
Core Terms
district court, post-conviction, invalidity, state court
Case Summary
Procedural Posture
Plaintiff state prisoner appealed from the United States
District Court for the Western District of Oklahoma,
which dismissed his 42 U.S.C.S. § 1983 suit against
defendants, state judges and their respective courts.
The prisoner argued that the Oklahoma courts
incorrectly applied state law to preclude consideration of
his petition for postconviction relief, thus depriving him
of his constitutional right to due process.
Overview
The prisoner's complaint recounted and reargued the
claims for relief underlying his state petition for
postconviction relief. The district court dismissed the
complaint as barred by Heck v. Humphrey for
improperly using 42 U.S.C.S. § 1983 as a vehicle to
challenge the validity of a conviction. The magistrate
also stated that, to the extent the prisoner's suit could be
construed as challenging an unfavorable state court
decision, such a suit was foreclosed under the Rooker-
Feldman doctrine. Acknowledging the ambiguity of the
prisoner's complaint, the court affirmed the district
court's dismissal. The prisoner acknowledged that his
suit sought review and rejection of the Oklahoma state
courts' judgments regarding his postconviction petitions
for relief. In essence, he asked the court to vacate the
state courts' dismissal of his petition and order a
rehearing. The court ruled that neither it nor the district
court had jurisdiction to do so. Because the appeal
failed to state a claim on which relief could be granted,
the court assessed, for purposes of 28 U.S.C.S. §
1915(g), one strike in addition to the strike assessed by
the district court.
Outcome
The court affirmed the district court's dismissal and
dismissed the appeal.
LexisNexis® Headnotes
Civil Rights Law > Protection of Rights > Section
1983 Actions > Scope
HN1[] Protection of Rights, Section 1983 Actions
If judgment in favor of a prisoner plaintiff in a 42
U.S.C.S. § 1983 damages suit would necessarily imply
the invalidity of his conviction or sentence, then the
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complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already
been invalidated.
Civil Procedure > ... > Preclusion of
Judgments > Full Faith & Credit > Rooker-Feldman
Doctrine
HN2[] Full Faith & Credit, Rooker-Feldman
Doctrine
Under the Rooker-Feldman doctrine, federal district
courts have no jurisdiction to consider suits that amount
to appeals of state-court judgments. The doctrine
applies to cases brought by state-court losers
complaining of injuries caused by state-court judgments
rendered before the federal district court proceedings
commenced and inviting district court review and
rejection of those judgments.
Counsel: For ALVIN LYNN ALEXANDER (# 84116),
Plaintiff - Appellant: Alvin Lynn Alexander, Lexington,
OK.
Judges: Before LUCERO, HARTZ, and GORSUCH,
Circuit Judges.
Opinion by: Neil M. Gorsuch
Opinion
[*146] ORDER AND JUDGMENT *
Alvin Lynn Alexander, a state prisoner in Oklahoma,
claims that the Oklahoma state courts acted
unconstitutionally in applying procedural bars under
state law to preclude Mr. Alexander's petition for post-
conviction relief, and he seeks declaratory and
injunctive relief by way of 42 U.S.C. § 1983. The district
* After examining appellant's brief and the 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) and 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.
court dismissed Mr. Alexander's action for lack of
jurisdiction, holding that Mr. Alexander's suit is either an
improper Section 1983 [**2] suit because it seeks to
invalidate the underlying conviction, or it is barred by the
Rooker-Feldman doctrine because it seeks direct review
of a state court's final judgment. For substantially the
same reasons expressed by the district court, we affirm
the dismissal of Mr. Alexander's suit.
* * *
In 1995, Mr. Alexander pled guilty to a charge of second
degree murder in the District Court of Cleveland County,
Oklahoma, and was sentenced to fifty years'
imprisonment. Although Mr. Alexander did not appeal
his conviction, he has, while incarcerated, submitted
several petitions for post-conviction relief in Oklahoma
state court, all of which have been denied. In the most
recent state court petition, Mr. Alexander argued that:
(1) the trial court lacked jurisdiction to convict him
because the district attorney failed to plead and prove
the felony DUI conviction underlying the felony-murder
charge on which Mr. Alexander was convicted; (2) the
district court failed to make a determination of Mr.
Alexander's competency to enter a [*147] plea; and (3)
the district court therefore lacked jurisdiction to accept
Mr. Alexander's plea. The District Court of Cleveland
County denied Mr. Alexander's petition [**3] for relief,
citing Oklahoma's Post-Conviction Procedure Act, Okla.
Stat. tit. 22 § 1080 et seq., as well as state court
precedent interpreting that Act, which preclude petitions
for post-conviction relief based on arguments that could
have been, but were not, raised on direct appeal. The
Oklahoma Court of Criminal Appeals affirmed the district
court's judgment on the same grounds.
Unsuccessful in seeking relief from the Oklahoma state
courts, Mr. Alexander brought suit in federal court
pursuant to 42 U.S.C. § 1983, naming as defendants
the judges presiding over his trial court and appellate
proceedings, as well as their respective courts. In his
complaint, Mr. Alexander argues that the Oklahoma
courts incorrectly applied state law to preclude
consideration of his petition for post-conviction relief,
thus depriving him of his constitutional right to due
process. Along the way, Mr. Alexander's complaint also
recounts and re-argues the claims for relief underlying
his state petition.
The case was referred to a magistrate judge for initial
consideration, pursuant to 28 U.S.C. § 636(b)(1)(B), (C).
The magistrate judge construed Mr. Alexander's suit as
essentially attacking the constitutionality, [**4] and thus
259 Fed. Appx. 145, *145; 2007 U.S. App. LEXIS 29745, **1
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validity, of his conviction. As such, the magistrate
recommended that the district court dismiss the case,
pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S. Ct.
2364, 129 L. Ed. 2d 383 (1994), for improperly using
Section 1983 as a vehicle to challenge the validity of a
conviction. In a footnote, the magistrate also stated that,
to the extent Mr. Alexander's suit can be construed as
challenging an unfavorable state court decision
(referring to the decision on Mr. Alexander's most recent
post-conviction relief petition), such a suit is foreclosed
under the Rooker-Feldman doctrine. See Jan. 19, 2007,
Report and Recommendation. The district court
accepted the magistrate judge's recommendation and
dismissed the case, stating that it was barred either
under Heck or the Rooker-Feldman doctrine, depending
on how the suit is construed. See Apr. 9, 2007, Dist. Ct.
Order. Mr. Alexander filed a timely notice of appeal.
* * *
Affording solicitous consideration to Mr. Alexander's pro
se court filings, as we are bound to do, see Van Deelen
v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007),
we acknowledge the ambiguity of Mr. Alexander's
complaint before the district court. At some points, the
complaint seems to focus on [**5] the constitutionality
and validity of the Oklahoma state courts' application of
procedural bars to Mr. Alexander's post-conviction
petitions for relief. See generally Dec. 15, 2006,
Complaint. At other points, it seems to contest the
constitutionality and validity of the conviction itself. See
id. We need not conclusively determine the actual
nature of Mr. Alexander's complaint for, construed either
way, we are constrained to affirm the district court's
dismissal.
If Mr. Alexander's suit is meant to directly attack the
validity of his conviction, then we must dismiss the suit
as an improper use of Section 1983. In Heck, the
Supreme Court stated that, HN1[] if judgment in favor
of the prisoner plaintiff in a Section 1983 damages suit
"would necessarily imply the invalidity of his conviction
or sentence[, then] the complaint must be dismissed
unless the plaintiff can demonstrate that the conviction
or sentence has already been invalidated." 512 U.S. at
487; see also Edwards v. Balisok, 520 U.S. 641, 648,
117 S. Ct. 1584, [*148] 137 L. Ed. 2d 906 (1997)
(extending the rule in Heck to Section 1983 claims that,
like Mr. Alexander's, seek declaratory relief). In his
complaint, Mr. Alexander makes a number of arguments
that would, if accepted [**6] by a court, clearly indicate
the invalidity of his conviction. For example, Mr.
Alexander argues that the state trial court never had
jurisdiction to accept a plea and enter a judgment of
conviction. Moreover, Mr. Alexander has never
demonstrated that his conviction has already been
invalidated. As such, Mr. Alexander's suit, construed in
this way, has no proper basis as a Section 1983 claim.
Mr. Alexander, however, argues emphatically in his brief
on appeal that his suit does not challenge the validity of
his conviction but instead only challenges the Oklahoma
courts' application of procedural bars to dismiss his
post-conviction petitions for relief. Such an interpretation
of his complaint is confirmed in part by the complaint's
request for relief, which expressly seeks only a
declaration that the state courts' review procedure is
unconstitutional and an injunction ordering a re-hearing
on his post-conviction petition and ordering the courts to
comply with the Fourteenth Amendment. Nowhere does
Mr. Alexander specifically ask for the court to declare
his conviction unconstitutional or invalid, even if his
complaint includes arguments that seek to demonstrate
such invalidity. If we accept [**7] Mr. Alexander's
contention on appeal, we must agree with him that his
suit is not precluded under Heck or its progeny. But
construed in this way, Mr. Alexander's suit must be
dismissed on the other grounds stated by the district
court - namely, pursuant to the Rooker-Feldman
doctrine.
HN2[] Under this doctrine, federal district courts have
no jurisdiction to consider suits "that amount to appeals
of state-court judgments." Bolden v. City of Topeka, 441
F.3d 1129, 1139 (10th Cir. 2006). As the Supreme Court
has stated, the doctrine applies to "cases brought by
state-court losers complaining of injuries caused by
state-court judgments rendered before the [federal]
district court proceedings commenced and inviting
district court review and rejection of those judgments."
Exxon Mobil Corp. v. Saudi Basic Indus., Corp., 544
U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454
(2005). 1 Mr. Alexander readily acknowledges that his
1 We note that the scope of the Rooker-Feldman doctrine has
been clarified in recent years and that we no longer apply it
unless the federal suit commenced after the state court
appeals process had run its full course. See Guttman v.
Khalsa, 446 F.3d 1027, 1031-32 (10th Cir. 2006). In
Oklahoma, the Court of Criminal Appeals is the state's highest
court for criminal matters. See Okla. Const. art. 7 § 4; Okla.
Stat. tit. 20 § 40. Its judgment on Mr. Alexander's appeal was
entered on November 21, 2006, and Mr. Alexander filed his
complaint in federal court on December 15, 2006. As such, Mr.
Alexander's suit clearly falls within the scope of Rooker-
Feldman.
259 Fed. Appx. 145, *147; 2007 U.S. App. LEXIS 29745, **4
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suit seeks review and rejection of the Oklahoma state
courts' judgments regarding his post-conviction petitions
for relief. In essence, he asks that we vacate the state
courts' dismissal of his petition and order a re-hearing.
Neither we nor the district court have jurisdiction to do
so. The only federal review [**8] that Mr. Alexander can
seek is by writ of certiorari to the Supreme Court. See
Exxon Mobil, 544 U.S. at 285-86; 28 U.S.C. § 1257. We
are therefore bound to affirm the district court's
dismissal even if we construe Mr. Alexander's complaint
exactly as he contends.
* * *
Because Mr. Alexander's appeal fails to state a claim on
which relief may be granted, we assess, for purposes of
28 U.S.C. § 1915(g), one strike in addition to [*149] the
strike assessed by the district court. We note that the
district court granted Mr. Alexander's request to proceed
[**9] in forma pauperis, but we wish to remind Mr.
Alexander of his obligation to continue making partial
payments until the entire filing fee for this appeal is paid.
See id. § 1915(a), (b). The appeal is dismissed. 2
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
End of Document
2 In his brief on appeal, Mr. Alexander asks that a certificate of
appealability be granted. Because a certificate of appealability
is not necessary for a prisoner civil rights appeal, we need not
consider that request. See, e.g., Lawson v. Engleman, 67 Fed.
Appx. 524, 527 n.4 (10th Cir. 2003).
259 Fed. Appx. 145, *148; 2007 U.S. App. LEXIS 29745, **7
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Positive
As of: May 13, 2022 4:48 PM Z
Galbreath v. City of Oklahoma
United States Court of Appeals for the Tenth Circuit
June 11, 2014, Filed
No. 12-6295
Reporter
568 Fed. Appx. 534 *; 2014 U.S. App. LEXIS 10824 **; 2014 WL 2598657
ALLEN GALBREATH, Plaintiff - Appellant, v. THE CITY
OF OKLAHOMA CITY; KEVIN PARTON, Defendants -
Appellees.
Notice: PLEASE REFER TO FEDERAL RULES OF
APPELLATE PROCEDURE RULE 32.1 GOVERNING
THE CITATION TO UNPUBLISHED OPINIONS.
Prior History: [**1] (D.C. No. 5:11-CV-01336-HE).
(W.D. Okla.).
Galbreath v. City of Okla., 2012 U.S. Dist. LEXIS
152652 (W.D. Okla., Oct. 24, 2012)
Core Terms
ordinance, district court, arrest, summary judgment,
disorderly conduct, vagueness, unconstitutionally
vague, municipal, alarm, as-applied, qualified immunity,
exercises, declaratory, morning, cane, void-for-
vagueness, ballet, grant summary judgment, reasonable
person, adequate notice, fair notice, notice
Case Summary
Overview
HOLDINGS: [1]-The district court erred in granting
summary judgment to the city in an arrestee's action
alleging that City of Oklahoma City, Okla., Ordinance
No. 22210, § 30-81(b) (2003) was unconstitutionally
vague as applied because a reasonable jury could
conclude that the arrestee lacked fair notice that his
conduct in the park could lead to criminal sanctions
under the ordinance; [2]-Nothing in the plain language of
the ordinance suggested that singing and performing
choreographed ballet moves in the park with a 3-foot
cane while wearing high heels would cause public
alarm; [3]-The ordinance's plain language failed to give
the arrestee notice that any public alarm caused by the
morning exercises would be without justification; [4]-The
ordinance lacked a scienter requirement, which could
have mitigated the indefiniteness of the other terms
when applied to the arrestee's conduct.
Outcome
Summary judgment reversed.
LexisNexis® Headnotes
Civil Procedure > Appeals > Summary Judgment
Review > General Overview
HN1[] Appeals, Summary Judgment Review
When the case comes to the court of appeals from
summary judgment, it recites the facts in the light most
favorable to the non-moving party, resolving all factual
disputes and reasonable inferences in his or her favor.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of Law > General
Overview
Civil Procedure > Appeals > Summary Judgment
Review > Standards of Review
HN2[] Summary Judgment, Entitlement as Matter
of Law
The court of appeals reviews a district court's grant of
summary judgment de novo, using the same standard
applied by the district court pursuant to Fed. R. Civ. P.
56(a).
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Civil Procedure > Judgments > Summary
Judgment > Evidentiary Considerations
HN3[] Summary Judgment, Evidentiary
Considerations
The court of appeals must view facts in the light most
favorable to the non-moving party, resolving all factual
disputes and reasonable inferences in his or her favor.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of Law > General
Overview
HN4[] Summary Judgment, Entitlement as Matter
of Law
Summary judgment shall be granted if there is no
genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a).
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of
Law > Materiality of Facts
HN5[] Entitlement as Matter of Law, Materiality of
Facts
A fact is material if, under governing law, it could affect
the outcome of the lawsuit.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of Law > Genuine
Disputes
HN6[] Entitlement as Matter of Law, Genuine
Disputes
A factual dispute is genuine if a rational jury could find in
favor of the nonmoving party on the evidence
presented.
Civil Procedure > ... > Summary
Judgment > Entitlement as Matter of Law > General
Overview
Civil Rights Law > Protection of Rights > Immunity
From Liability > Defenses
HN7[] Summary Judgment, Entitlement as Matter
of Law
At summary judgment, courts must grant qualified
immunity unless the plaintiff meets a two-part burden to
show (1) a reasonable jury could find facts supporting a
violation of a constitutional right, which (2) was clearly
established at the time of the defendant's conduct.
Courts may exercise their sound discretion in deciding
which of the two steps of the qualified immunity analysis
should be addressed first in light of the circumstances in
the particular case at hand.
Civil Rights Law > ... > Section 1983
Actions > Scope > Government Actions
HN8[] Scope, Government Actions
Resolving 42 U.S.C.S. § 1983 claims against
municipalities requires consideration of whether the city
is responsible for harm caused by a constitutional
violation.
Governments > Local Governments > Ordinances &
Regulations
Governments > Legislation > Vagueness
HN9[] Local Governments, Ordinances &
Regulations
An as-applied challenge to an ordinance can give rise to
municipal liability.
Civil Rights Law > ... > Section 1983
Actions > Scope > Government Actions
HN10[] Scope, Government Actions
A city will not automatically be liable under 42 U.S.C.S.
§ 1983 if one of its employees happened to apply a
constitutional policy in an unconstitutional manner.
Civil Rights Law > ... > Section 1983
568 Fed. Appx. 534, *534; 2014 U.S. App. LEXIS 10824, **1
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Actions > Scope > Government Actions
HN11[] Scope, Government Actions
Municipal entities may be subject to liability under 42
U.S.C.S. § 1983 if they make and enforce a law that is
unconstitutional as applied.
Criminal Law & Procedure > ... > Disruptive
Conduct > Disorderly Conduct & Disturbing the
Peace > General Overview
Governments > Local Governments > Ordinances &
Regulations
HN12[] Disruptive Conduct, Disorderly Conduct &
Disturbing the Peace
Oklahoma City's disorderly conduct ordinance,
Oklahoma City, Okla., Municipal Code § 30-81(b),
reflects the official policy of the municipality. Official
municipal policy includes the decisions of a
government's lawmakers.
Governments > Legislation > Vagueness
HN13[] Legislation, Vagueness
The question of whether a statute has been rendered
unconstitutionally vague as applied is a question
involving issues of law.
Constitutional Law > ... > Case or
Controversy > Constitutionality of
Legislation > General Overview
Constitutional Law > ... > Fundamental
Rights > Procedural Due Process > Scope of
Protection
HN14[] Case or Controversy, Constitutionality of
Legislation
To satisfy due process, a penal statute must define the
criminal offense (1) with sufficient definiteness that
ordinary people can understand what conduct is
prohibited and (2) in a manner that does not encourage
arbitrary and discriminatory enforcement.
Governments > Local Governments > Ordinances &
Regulations
Governments > Legislation > Vagueness
HN15[] Local Governments, Ordinances &
Regulations
For an as-applied vagueness challenge, the court of
appeals must tether its analysis to the factual context in
which the ordinance was applied.
Criminal Law & Procedure > ... > Disruptive
Conduct > Disorderly Conduct & Disturbing the
Peace > Elements
HN16[] Disorderly Conduct & Disturbing the
Peace, Elements
A person is guilty of disorderly conduct, a Class "a"
offense, when such person causes public alarm without
justification. City of Oklahoma City, Okla., Ordinance
No. 22210, § 30-81(b) (2003).
Constitutional Law > ... > Case or
Controversy > Constitutionality of
Legislation > General Overview
Governments > Local Governments > Ordinances &
Regulations
Governments > Legislation > Vagueness
HN17[] Case or Controversy, Constitutionality of
Legislation
In evaluating the adequate notice element, the court of
appeals must determine whether a reasonable person
would have fair notice from the language of the
ordinance that the particular conduct which he or she
engaged in was punishable. In an as-applied challenge,
a statute is unconstitutionally vague if it fails to put a
defendant on notice that his or her conduct was
criminal. For statutes involving criminal sanctions the
requirement for clarity is enhanced.
Governments > Legislation > Interpretation
568 Fed. Appx. 534, *534; 2014 U.S. App. LEXIS 10824, **1
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HN18[] Legislation, Interpretation
"Alarm" defined as sudden fear or concern caused by
the realization of danger or an impending setback.
Governments > Legislation > Interpretation
HN19[] Legislation, Interpretation
"Justification" is defined as a lawful or sufficient reason
for one's acts or omissions.
Constitutional Law > ... > Case or
Controversy > Constitutionality of
Legislation > General Overview
Criminal Law & Procedure > Criminal
Offenses > Acts & Mental States > General
Overview
Governments > Legislation > Vagueness
HN20[] Case or Controversy, Constitutionality of
Legislation
Fair notice concerns can be ameliorated by the fact that
the challenged statute contains a scienter requirement.
A scienter requirement may mitigate a criminal law's
vagueness by ensuring that it punishes only those who
are aware their conduct is unlawful.
Counsel: For ALLEN GALBREATH, Plaintiff -
Appellant: John Spencer Bryan, Bryan & Terrill Law,
Tulsa, OK; Steven James Terrill, Bryan & Terrill Law,
Tulsa, OK.
For THE CITY OF OKLAHOMA CITY, Defendant -
Appellee: Richard C. Smith, Esq., Office of Municipal
Counselor, Litigation Division, Oklahoma City, OK;
Jennifer M. Warren, City of Oklahoma City, Office of the
Municipal Counselor, Oklahoma City, OK.
For KEVIN PARTON, Defendant - Appellee: Stacey
Felkner, Fenton Fenton Smith Reneau & Moon,
Oklahoma City, OK; Susan Ann Knight, Manchester &
Knight, PLLC, Oklahoma City, OK.
Judges: Before GORSUCH, MATHESON, and
BACHARACH, Circuit Judges.
Opinion by: Scott M. Matheson, Jr.
Opinion
[*535] ORDER AND JUDGMENT*
Allen Galbreath was arrested for disorderly conduct
while performing his morning ballet exercises in an
Oklahoma City park. He brought a civil rights action
under 42 U.S.C. § 1983 against the arresting officer and
the City, alleging the arrest lacked [**2] probable cause
and the municipal ordinance was unconstitutionally
vague. Each defendant moved for summary judgment,
and Mr. Galbreath moved for declaratory judgment on
his claims against the City. The district court denied Mr.
Galbreath's motion and granted both defendants'
motions, holding (1) the arresting officer had qualified
immunity and (2) the disorderly conduct ordinance was
not unconstitutionally vague as applied to Mr. Galbreath.
Mr. Galbreath now appeals. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm the first holding. As
to the second, we reverse and remand.
I. BACKGROUND
A. Factual History1
Mr. Galbreath is a "former dancer with the Oklahoma
Ballet." Aplt. Appx., Vol. I at 177. Because of a
debilitating hip condition, Mr. Galbreath regularly
performed ballet exercises as a form of "physical
therapy" at Goodholm Park in Oklahoma City to improve
his ambulatory function. Id. at 124, 177 n.1. [**3] In
June 2010, Mr. Galbreath went to Goodholm Park to
perform his morning physical therapy exercises. He
wore "[o]versized gray pants, a fitted gray T-shirt, . . . a
red bandanna," and "high-heel shoe[s]." Id. at 129. He
also carried a walking cane roughly 3 feet in length and
a large red handbag.
Upon arriving at the park, Mr. Galbreath began singing
and performing dance moves using his cane. Shortly
* 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.
1 HN1[] Because this case comes to us from summary
judgment, we recite the facts "in the light most favorable to"
the non-moving party, Mr. Galbreath, "resolving all factual
disputes and reasonable inferences" in his favor. Cillo v. City
of Greenwood Village, 739 F.3d 451, 461 (10th Cir. 2013).
568 Fed. Appx. 534, *534; 2014 U.S. App. LEXIS 10824, **1
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thereafter, Mr. Galbreath fielded a call from a friend and
began laughing loudly. See id. at 133, 288. A woman
called 911 to report she was at the park with her
grandchildren and concerned about a "man in high
heels with a big stick and a purse." Id. at 152 (recording
of 911 call).2
Officer Kevin Parton of the Oklahoma City Police
Department responded to the 911 call. After arriving, he
found Mr. Galbreath wearing high heels and carrying a
cane. When the officer asked Mr. Galbreath what he
was doing at the park, Mr. Galbreath explained that he
was doing his "morning exercises" and demonstrated a
short choreographed ballet sequence using his walking
[**4] cane. Id. at 140, 288.
According to Mr. Galbreath, Officer Parton "grabbed"
Mr. Galbreath's arm, twisted it up "above [his] head to
where it hurt" and escorted Mr. Galbreath to the police
car. Id. at 134. Officer Parton searched Mr. Galbreath's
red bag and found an air pistol. After handcuffing Mr.
Galbreath as a "precautionary measure" and running a
warrant check, Officer Parton learned that Mr. Galbreath
had no outstanding arrest warrants or any criminal
background. Id. at 160, 179.
[*536] Officer Parton recounted that, save for two
tennis players, the other people in the park had
gathered by the playground equipment and were no
longer involved in "open play." Id. at 164.3 He presumed
they were afraid of Mr. Galbreath. See id. Officer
Parton's arrest report, however, did not reflect this
observation. Rather, it merely suggested he observed
"several adult women accompanied by approx[imately] 8
to 10 children," who "were playing on the playground
equipment," roughly "20 yards from" Mr. Galbreath's
location. Id. at 160. Nothing in the arrest report suggests
Officer Parton spoke with any of these individuals to
confirm whether they were in fact alarmed, and the 911
caller testified in her deposition [**5] that she had never
met Officer Parton before. See id. at 157. And although
Officer Parton asserted in his arrest report that he asked
Mr. Galbreath if he had a "legit[i]mate purpose" for being
in the park, id. at 160, Mr. Galbreath disputes this fact.
Officer Parton arrested Mr. Galbreath for "disorderly
2 Although the recording of the 911 call is garbled, the
transcript states the caller thought Mr. Galbreath was "drunk."
Aplt. Appx., Vol. I at 272.
3 We draw this statement from Officer Parton's response to Mr.
Galbreath's interrogatories during the discovery conducted in
the district court. See Aplt. Appx., Vol. I at 161-68.
conduct" under Oklahoma City Municipal Code § 30-
81(b), which defines the offense as "caus[ing] public
alarm without justification." Although the City initially
charged Mr. Galbreath under the ordinance, it later
dismissed the charge.
B. Procedural History
On October 12, 2011, Mr. Galbreath sued Officer Parton
and Oklahoma City under 42 U.S.C. § 1983 in
Oklahoma state court, alleging several violations of
federal law.4 The defendants removed the case to the
United States District Court for the Western District of
Oklahoma. Mr. Galbreath filed an amended complaint in
which he argued (1) Officer Parton arrested him without
probable cause and (2) the City's disorderly conduct
ordinance was unconstitutionally vague [**6] in violation
of the Due Process Clause of the Fourteenth
Amendment.5 The complaint sought damages,
declaratory relief, and an injunction prohibiting the City
from enforcing § 30-81.
The City unsuccessfully moved to dismiss Mr.
Galbreath's claims for injunctive relief. After discovery,
Officer Parton moved for summary judgment on
qualified immunity grounds and the City moved for
summary judgment on Mr. Galbreath's municipal liability
claims. Mr. Galbreath moved for declaratory judgment
on his claims against the City.
The [**7] court denied Mr. Galbreath's motion and
granted summary judgment in favor of the defendants. It
first determined that Mr. Galbreath lacked standing to
seek prospective relief—either declaratory or
injunctive—because he did not allege a credible threat
of future prosecution under the ordinance. The court
therefore denied Mr. Galbreath's motion for declaratory
judgment on these claims and dismissed them with
prejudice.
4 Mr. Galbreath also asserted a claim under the Oklahoma
Governmental Tort Claims Act, but it is not relevant to this
appeal. See Aplt. Appx., Vol. I at 76, 241, 369.
5 In his amended complaint, Mr. Galbreath also alleged (1)
Officer Parton violated the First Amendment by arresting Mr.
Galbreath for engaging in protected expression and (2) the
City's ordinance violates the First Amendment because of its
overbreadth. The district court determined Mr. Galbreath
"confessed" the first claim by failing to rebut Officer Parton's
motion on that issue and affirmatively abandoned the second
in his response to the City's motion for summary judgment.
See Aplt. Appx., Vol. I at 365-66.
568 Fed. Appx. 534, *535; 2014 U.S. App. LEXIS 10824, **3
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[*537] The district court next granted Officer Parton's
request for qualified immunity, concluding he had
probable cause to arrest Mr. Galbreath and any violation
of Mr. Galbreath's rights was not otherwise clearly
established.
Finally, the court granted summary judgment in the
City's favor on Mr. Galbreath's remaining void-for-
vagueness claim for damages and retrospective
declaratory relief. The court first concluded he could not
bring a facial vagueness challenge because he was not
seeking pre-enforcement review and failed to allege the
ordinance threatened constitutionally protected activity.
Left to address an as-applied due process vagueness
claim, the district court determined Mr. Galbreath had
sufficient notice that his behavior could have fallen
within the ordinance's description [**8] of prohibited
conduct.
Accordingly, the district court dismissed Mr. Galbreath's
case. Mr. Galbreath now appeals.
II. DISCUSSION
On appeal, Mr. Galbreath has abandoned most of his
claims from the district court.6 In his opening brief, Mr.
Galbreath contends the district court erred by (A)
granting Officer Parton qualified immunity on his Fourth
Amendment claim and (B) concluding that Oklahoma
City's disorderly conduct statute was not void-for-
vagueness in violation of the Due Process Clause of the
Fourteenth Amendment. We address these arguments
in turn after discussing our standard of review.
HN2[] We review a district court's grant of summary
judgment de novo, "using the same standard applied by
the district court pursuant to Fed. R. Civ. P. 56(a)." Cillo
v. City of Greenwood Village, 739 F.3d 451, 461 (10th
Cir. 2013); see also Tabor v. Hilti, Inc., 703 F.3d 1206,
1215 (10th Cir. 2013). HN3[] We must "view facts in
the light most favorable to" the non-moving party, Mr.
Galbreath, "resolving all factual disputes and reasonable
6 As noted above, see supra note 5, Mr. Galbreath withdrew
his First Amendment overbreadth claim in the summary
judgment briefing before the district court. See Aplt. Appx.,
Vol. I at 312. Additionally, the district court determined that Mr.
Galbreath conceded his First Amendment free expression
claim by failing to respond to Officer Parton's motion on that
issue. See id. at 365 & n.22. Mr. Galbreath does not press
either argument on appeal. Nor does he challenge the district
court's rejection of his plea for prospective relief. See Oral Arg.
Recording (6:14-6:20). We therefore do not consider any
[**9] of these claims.
inferences" in his favor. Cillo, 739 F.3d at 461. HN4[]
Summary judgment shall be granted if "there is no
genuine dispute as to any material fact" and the moving
party is "entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a); see also Cillo, 739 F.3d at 461. HN5[]
"A fact is material if, under governing law, it could
[affect] the outcome of the lawsuit." Cillo, 739 F.3d at
461 (quoting EEOC v. Horizon/CMS Healthcare Corp.,
220 F.3d 1184, 1190 (10th Cir. 2000)). HN6[] A
factual dispute is "genuine if a rational jury could find in
favor of the nonmoving party on the evidence
presented." Id. (quotations omitted).
A. Qualified Immunity for Officer Parton on the
Fourth Amendment Claim
HN7[] At summary judgment, courts must grant
qualified immunity unless the plaintiff [**10] meets a
two-part burden to "show (1) a reasonable jury could
find facts supporting a violation of a constitutional right,
which (2) was clearly established at the time of the
defendant's conduct." Estate of Booker [*538] v.
Gomez, 745 F.3d 405, 411 (10th Cir. 2014); see also
Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151,
150 L. Ed. 2d 272 (2001) (asking whether "a violation
could be made out on a favorable view of the parties'
submissions"), receded from on other grounds by
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 172
L. Ed. 2d 565 (2009). Courts may "exercise their sound
discretion in deciding which of the two" steps of the
"qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at
hand." Pearson, 555 U.S. at 236.
Because Mr. Galbreath fails to meet the second step,
we need not and do not reach the first. His opening brief
makes no mention of clearly established law, and at oral
argument, his counsel acknowledged that he cannot
point to any clearly established federal law giving Officer
Parton notice that the arrest was unconstitutional. See
Oral Arg. Recording (10:10-11:05). Indeed, when asked
whether he had "just conceded that the law wasn't
clearly established," Mr. Galbreath's counsel responded,
[**11] "Yes Your Honor." Id. (10:10-10:23). Mr.
Galbreath therefore fails to meet his burden to show that
Officer Parton's actions violated clearly established
law.7
7 In reaching this conclusion, we express no opinion on
whether Mr. Galbreath has satisfied the first step of the
qualified immunity inquiry—that a reasonable jury could find
Officer Parton lacked probable cause to arrest Mr. Galbreath
for disorderly conduct.
568 Fed. Appx. 534, *536; 2014 U.S. App. LEXIS 10824, **7
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We therefore proceed to Mr. Galbreath's void-for-
vagueness claim against the City.
B. Void-for-Vagueness Claim against the City
Mr. Galbreath's remaining claim seeks to hold
Oklahoma City liable because the disorderly conduct
ordinance was void for vagueness as applied. In his
amended complaint, Mr. Galbreath requested damages
as well as a "declaration that Oklahoma City Ordinance
30-81 is unconstitutionally void for vagueness on its
face and as applied by [Officer] Parton in violation of the
Due Process Clause." Aplt. Appx., Vol. I at 37. At oral
argument, however, Mr. Galbreath's counsel abandoned
his challenge to the ordinance's facial validity. See Oral
Arg. Recording (4:00-4:07, 6:07-6:28).
Our consideration of Mr. Galbreath's void-for-vagueness
claim is therefore limited [**12] to (1) whether the City
may be held liable under Monell v. Dep't of Soc. Servs.
of City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L.
Ed. 2d 611 (1978), for an as-applied violation, and if so,
(2) whether the district court erred in granting summary
judgment to the City on the merits. See Collins v. City of
Harker Heights, 503 U.S. 115, 120, 112 S. Ct. 1061,
117 L. Ed. 2d 261 (1992) (HN8[] resolving § 1983
claims against municipalities requires consideration of
whether "the city is responsible" for harm "caused by a
constitutional violation"). Mindful that Mr. Galbreath
need only raise a genuine dispute of material fact to
survive summary judgment, we answer both questions
in the affirmative.8
1. Municipal Liability
The City argues "even if the ordinance was vague as
applied to [Mr.] Galbreath's specific behavior, the City
may not be held liable because [it] does not maintain a
policy of applying the ordinance in an unconstitutional
manner." Okla. City Aplee. Br. at 27. We disagree.
Our precedent forecloses the City's argument. We have
held that HN9[] an as-applied challenge to an
ordinance can give rise to [*539] municipal liability. In
Christensen v. Park City Mun. Corp., 554 F.3d 1271
(10th Cir. 2009), [**13] Park City police officers
arrested the plaintiff for selling artwork on public
property without a license in violation of two city
ordinances. See id. at 1274. The plaintiff sued Park City
for damages and declaratory relief, alleging the
ordinances were unconstitutional as applied to his
8 In doing so, we express no opinion on the ordinance's facial
validity.
expressive activity in violation of the First Amendment.
See id. The district court granted Park City's motion to
dismiss, reasoning the city could not be held liable for a
single unlawful application of an otherwise constitutional
ordinance. See id. at 1274-75; see also Christensen v.
Park City Mun. Corp., No. 2:06-CV-202 TS, 2007 U.S.
Dist. LEXIS 74122, 2007 WL 2908288, at *1 (D. Utah
Oct. 3, 2007) (HN10[] "[A] city will not automatically
be liable under § 1983 if one of its employees happened
to apply a constitutional policy in an unconstitutional
manner . . . ." (quotations and alterations omitted)).
We reversed, reasoning "[i]f it turns out that the relevant
ordinances are unconstitutional, whether on their face or
as applied to Mr. Christensen, the liability falls on the
city." Christensen, 554 F.3d at 1279 (emphasis added).
We concluded HN11[] municipal entities "may be
subject to liability under § 1983" if they "make[] and
enforce[] [**14] a law that is unconstitutional as
applied." Id. 1280.
Here, "there is no question" HN12[] Oklahoma City's
disorderly conduct ordinance, like the "city ordinances"
at issue in Christensen, "reflect[s] the 'official policy' of
the municipality." Id. at 1279; see also Monell, 436 U.S.
at 690 ("ordinance"); Connick v. Thompson, 131 S. Ct.
1350, 1359, 179 L. Ed. 2d 417 (2011) ("[o]fficial
municipal policy" includes the "decisions of a
government's lawmakers"). Officer Parton arrested Mr.
Galbreath for violating the ordinance. See Aplt. Appx.,
Vol. I at 191 (police report asserting that Mr. Galbreath
"was placed under arrest for disorderly conduct"), 197
(citation alleging Mr. Galbreath "commit[ed]" the
"offense" of "Disorderly Conduct"). Consequently, if the
ordinance was unconstitutional as applied to Mr.
Galbreath's conduct, then Oklahoma City "may be
subject to liability under § 1983." Christensen, 554 F.3d
at 1280.
2. Vagueness As Applied
We review the district court's summary judgment ruling
on Mr. Galbreath's as-applied vagueness claim de novo.
See United States v. Protex Industries, Inc., 874 F.2d
740, 743 (10th Cir. 1989) (HN13[] "The question of
whether a statute has been rendered unconstitutionally
vague as applied is a question [**15] involving issues of
law."); see also Faustin v. City, Cnty. of Denver, Colo.,
268 F.3d 942, 947 (10th Cir. 2001) (reviewing grant of
summary judgment on vagueness claim de novo).
HN14[] "To satisfy due process, 'a penal statute
[must] define the criminal offense [1] with sufficient
568 Fed. Appx. 534, *538; 2014 U.S. App. LEXIS 10824, **11
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definiteness that ordinary people can understand what
conduct is prohibited and [2] in a manner that does not
encourage arbitrary and discriminatory enforcement.'"
Skilling v. United States, 561 U.S. 358, 130 S. Ct. 2896,
2927-28, 177 L. Ed. 2d 619 (2010) (quoting Kolender v.
Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed.
2d 903 (1983)). HN15[] For an as-applied vagueness
challenge, we must tether our analysis to the factual
context in which the ordinance was applied. See United
States v. Franklin-El, 554 F.3d 903, 910 (10th Cir. 2009)
("Because this is an as-applied challenge, we consider
this statute in light of the charged conduct."). At
summary judgment, we view the evidence in the light
most favorable to the non-moving party—here, Mr.
Galbreath. See, e.g., Cillo v. City of Greenwood Village,
739 F.3d 451, 461 (10th Cir. 2013).
[*540] The City's ordinance provides:HN16[] "A
person [**16] is guilty of disorderly conduct, a Class 'a'
offense, when such person: . . . causes public alarm
without justification." City of Oklahoma City, Ordinance
No. 22210, § 30-81(b) (adopted May 6, 2003). The
ordinance does not define "public alarm" or "without
justification," and the parties have not pointed us to an
Oklahoma case construing these terms. "We are thus
relegated, at best, to the words of the ordinance itself."
Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.
Ct. 1686, 29 L. Ed. 2d 214 (1971); see also City of
Chicago v. Morales, 527 U.S. 41, 68, 119 S. Ct. 1849,
144 L. Ed. 2d 67 (1999) (O'Connor, J., concurring)
("[W]e cannot impose a limiting instruction that a state
supreme court has declined to adopt.").
Mr. Galbreath contends this language was
unconstitutionally vague as applied to his activity in the
park because (1) it failed to give adequate notice to a
person of ordinary intelligence that his conduct was
unlawful and (2) ceded too much enforcement discretion
to Officer Parton. Because we conclude the district court
erred in granting summary judgment to the City on the
adequate notice element, we do not consider whether
the ordinance ceded too much enforcement discretion to
Officer Parton.
HN17[] In evaluating the adequate notice element,
[**17] we must determine whether a reasonable person
in Mr. Galbreath's position would have "'fair notice from
the language' of the [ordinance] 'that the particular
conduct which he engaged in was punishable.'" United
States v. Baldwin, 745 F.3d 1027, 1031 (10th Cir. 2014)
(quoting Parker v. Levy, 417 U.S. 733, 755, 94 S. Ct.
2547, 41 L. Ed. 2d 439 (1974)); see also United States
v. Harris, 705 F.3d 929, 932 (9th Cir. 2012) ("In an as-
applied challenge, a statute is unconstitutionally vague if
it fails to put a defendant on notice that his conduct was
criminal. For statutes involving criminal sanctions the
requirement for clarity is enhanced." (quotations and
alterations omitted)).
In granting the City's motion for summary judgment on
Mr. Galbreath's as-applied vagueness claim, the district
court reasoned briefly as follows:
For no apparent reason, plaintiff was behaving in a
public place in an alarming or disconcerting
manner. When given the opportunity to explain,
plaintiff replied "my morning exercises" and
proceeded immediately with conduct which a
reasonable person might have viewed as
threatening, or at least as something other than an
ordinary "morning exercise." While plaintiff's arrest,
under the circumstances as we [**18] now know
them to be, was perhaps unfortunate, it did not
violate his due process rights.
Galbreath v. City of Oklahoma City, No. CIV-11-1336-
HE, 2012 U.S. Dist. LEXIS 152652, 2012 WL 5289456,
at *8 (W.D. Okla. Oct. 24, 2012). On its face, the district
court's analysis points to denying summary judgment,
not granting it. If a reasonable person "might" have
viewed Mr. Galbreath's activity in the park as
"threatening" or "something other than" ordinary
morning exercises, then a reasonable person could also
conclude Mr. Galbreath's conduct was neither
threatening nor out of the ordinary. The district court's
analysis turned well-established principles of summary
judgment on their head.
Mr. Galbreath testified he was singing and doing ballet
exercises in high-heel shoes as a form of physical
therapy to relieve pain from a hip disorder. He exercised
with the assistance of a roughly 3-foot-long cane. He
twirled his cane for a few seconds in a choreographed
dance move when Officer Parton confronted him. At that
time, Mr. Galbreath had been at the park about five
minutes. Despite [*541] these facts, the district court
concluded Mr. Galbreath "was behaving in a public
place in an alarming or disconcerting manner."
Galbreath, 2012 U.S. Dist. LEXIS 152652, 2012 WL
5289456, at *8. [**19] In doing so, "the court below
credited the evidence of the party seeking summary
judgment and failed properly to acknowledge key
evidence offered by the party opposing that motion."
Tolan v. Cotton, 134 S. Ct. 1861, 1867-68, 188 L. Ed.
2d 895 (2014).
568 Fed. Appx. 534, *539; 2014 U.S. App. LEXIS 10824, **15
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Viewing the facts in the light most favorable to Mr.
Galbreath, a reasonable jury could conclude he lacked
fair notice that his conduct in the park could lead to
criminal sanctions under the City's disorderly conduct
ordinance.
First, nothing in the plain language of the ordinance
suggests that singing and performing choreographed
ballet moves in the park with a 3-foot cane while
wearing high heels would cause "public alarm." See
American Heritage Dictionary 39 (5th ed. 2011)
(defining HN18[] "alarm" as "[s]udden fear or concern
caused by the realization of danger or an impending
setback"); see also Bell v. Keating, 697 F.3d 445, 462
(7th Cir. 2012) (holding that the term "alarm," as used in
a municipal ordinance, was unconstitutionally vague in
part because it failed to give individuals of common
comprehension notice of the prohibited conduct).
Second, the ordinance's plain language failed to give
Mr. Galbreath notice that any public alarm caused by
these morning [**20] exercises would be "without
justification." See Black's Law Dictionary (9th ed. 2009)
(defining HN19[] "justification" as "[a] lawful or
sufficient reason for one's acts or omissions"); cf.
Morales, 527 U.S. at 56-57 (plurality op.) (ordinance
forbidding "remain[ing] in any one place with no
apparent purpose" unconstitutionally vague in part
because it failed to give adequate notice); Jim Crockett
Promotion, Inc. v. City of Charlotte, 706 F.2d 486, 489
(4th Cir. 1983) (holding, without any "difficulty," "that the
term 'unnecessary' in the general prohibitory language
of the Ordinance [was] unconstitutionally vague").
Third, the ordinance lacks a scienter requirement, which
could have mitigated the indefiniteness of the other
terms when applied to Mr. Galbreath's conduct. See Hill
v. Colorado, 530 U.S. 703, 732, 120 S. Ct. 2480, 147 L.
Ed. 2d 597 (2000) (HN20[] fair notice concerns can
be "ameliorated" by the fact that the challenged statute
"contains a scienter requirement"); United States v.
Gaudreau, 860 F.2d 357, 360 (10th Cir. 1988) ("[A]
scienter requirement may mitigate a criminal law's
vagueness by ensuring that it punishes only those who
are aware their conduct is unlawful."); Stahl v. City of St.
Louis, 687 F.3d 1038, 1041 (8th Cir. 2012)
[**21] (holding that an ordinance was unconstitutionally
vague in part because it lacked a scienter requirement
in that violation turned on the reactions of third parties
rather than the individual whose actions were involved).
Given the foregoing, a reasonable jury could find the
ordinance failed to give a reasonable person in Mr.
Galbreath's position "fair notice . . . that the particular
conduct which he engaged in was punishable." Baldwin,
745 F.3d at 1031 (quotations omitted). In concluding
otherwise, the district court "failed to view the evidence
at summary judgment in the light most favorable to [Mr.
Galbreath] with respect to the central facts of this case,"
Tolan, 134 S. Ct. at 1866. Perhaps facts will emerge on
remand establishing Mr. Galbreath had adequate notice
his conduct was unlawful. We express no opinion on
that matter or whether the ordinance ceded too much
enforcement discretion to Officer Parton in this instance.
See Yellowbear v. Lampert, 741 F.3d 48, 64
(10th [*542] Cir. 2014) ("For now, however, these
subtler (and admittedly more difficult) questions remain
for the parties and district court to consider on
remand."). We merely hold that the district court erred in
granting [**22] summary judgment to the City at this
juncture because a reasonable jury could find Mr.
Galbreath lacked fair notice that his conduct could be
punished.
III. CONCLUSION
For the foregoing reasons, we (1) affirm the district
court's summary judgment grant of qualified immunity to
Officer Parton and (2) reverse its summary judgment
grant to the City on Mr. Galbreath's as-applied void-for-
vagueness claim. We remand for further proceedings
consistent with this opinion.9
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
End of Document
9 We agree with the parties that the appendix documents
containing medical information about the appellant and not
pertinent to the merits of this appeal should remain under seal.
See Eugene S. v. Horizon Blue Cross Blue Shield of New
Jersey, 663 F.3d 1124, 1136 (10th Cir. 2011).
568 Fed. Appx. 534, *541; 2014 U.S. App. LEXIS 10824, **19
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1
DISTRICT COURT, LARIMER COUNTY, COLORADO
201 Laporte Avenue, Suite 100
Fort Collins, Colorado 80521-2761
(970) 494-3800
▲ COURT USE ONLY ▲
PEOPLE OF THE STATE OF COLORADO,
Plaintiff/Appellee,
v.
ADAM WIEMOLD,
Defendant/Appellant.
Case No. 19CV30889
Courtroom: 5A
ORDER ON APPEAL: REVERSED AND REMANDED WITH DIRECTIONS
This matter comes before the Court on Defendant/Appellant Adam Wiemold’s
appeal of the Municipal Court’s denial of his Motion to Dismiss and Motion to Vacate
Conviction and Enjoin the Imposition of Any Sentence. The Court has considered the
briefs, the transcript of the hearing, and the complete record in this matter. Being fully
advised in the premises, the Court reverses the denial of the Motion to Dismiss.
I. BACKGROUND
On September 10, 2018 Mr. Wiemold (“Appellant”) was homeless. Mr.
Wiemold works full time as a supervisor of the Catholic Charities homeless shelter,
one of the two homeless shelters in Fort Collins. Appellant makes $16.00 per hour.
Appellant’s job included managing daily operations at the shelter, ensuring clients
followed the shelter’s rules, suspending people from the shelter for rule violations,
and enforcing such suspensions.
Appellant testified that he had been homeless for about two years because he
was paying off credit card debt. The record indicates that on September 10, 2018
Appellant could not stay at either of the homeless shelters in Fort Collins available to
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single men. Appellant was not able to stay at Catholic Charities because of shelter
policies. Appellant could not stay at Fort Collins Rescue Mission (FCRM) because
the shelter populations overlapped. Additionally, he could not stay at FCRM because
of fraternization rules and to avoid potentially unsafe situations. Appellant testified
that he did not ask his employer for an exception to this rule. Appellant testified that
he did not go to either homeless shelter to request a bed, nor did he look for a room
to rent. The record indicates that both shelters had reached bed capacity on the
evening of September 10, 2020.
On the night of September 10, 2018 Mr. Wiemold parked in the parking lot at
the Poudre rest area and slept in his vehicle. Appellant was asleep in his vehicle when
the Fort Collins Police Services (FCPS) officers conducted an enforcement operation
at the rest area. They did so at the request of Wesley Mansfield, a supervisor who
worked for the rest area’s owner, the Colorado Department of Transportation
(CDOT). Mr. Mansfield texted FCPS officer Chip Avinger complaining about people
who are homeless in the area and repeatedly asked officer Avinger to force the
individuals who are homeless to leave the rest area. Mr. Mansfield alleged ongoing
issues with homeless campers in the area causing damage, refuse and in violation of
the City’s prohibition of camping on public property.
Officer Avinger arranged a date and time to conduct an operation at the
Poudre rest area. FCPS officers woke Appellant up around 6:00 am and cited him for
sleeping in his vehicle. On September 11, 2018, Mr. Wiemold received a summons
for an alleged violation of Fort Collins Municipal Ordinance § 17-181 “Camping on
Public Property.” After the enforcement operation, officer Avinger sent a text
message to Mr. Mansfield informing him they had charged six people with Camping
on Public Property.
Mr. Wiemold filed a Motion to Dismiss arguing the same issues argued in this
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appeal. The municipal court held an evidentiary hearing and denied the motion. The
court denied the claim for cruel and unusual punishment as an issue only properly
brought after conviction. The court denied the claim for selective enforcement based
on the evidence presented. The parties stipulated to a court trial. Appellant waived
his right to a full trial, and the parties stipulated to the evidence previously presented
at the motions hearing. The municipal court issued its Findings and Ruling and held
that the evidence showed that Mr. Wiemold was found sleeping in the back of his car
in 2-hour parking on public property, and that Mr. Wiemold admitted to being in his
vehicle overnight. The municipal court held that the evidence was sufficient to prove
the charge of Camping on Public Property against Appellant beyond a reasonable
doubt.
Appellant filed a Motion to Vacate Conviction and Enjoin the Imposition of
Any Sentence. Appellant argued that the municipal court should vacate his conviction
and dismiss all charges against him because issuing him a camping citation was cruel
and unusual punishment under the Eighth Amendment and the Colorado
Constitution. The municipal court issued its Order denying Appellant’s Motion to
Vacate.
Mr. Wiemold filed this appeal and asserted that the municipal court erred when
denying his Motion to Dismiss, and when it denied his Motion to Vacate Conviction.
Appellant requests this Court reverse the ruling and remand with direction to the
municipal court to vacate his conviction and dismiss the charge against him.
Appellant argues that because he was homeless and could not have stayed at
either of the Fort Collins homeless shelters, prosecuting and convicting him of this
charge violates the prohibition on cruel and unusual punishment under the Eighth
Amendment and Colorado Constitution. Appellant further argues that because the
FCPS officers went to the parking area with the plan of contacting and citing people
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suspected of being homeless, his citation was selective enforcement by the FCPS in
violation of the Fourteenth Amendment. Appellee asserts that this case does not fall
under the reasoning of Appellant’s argued case law, and that the courts should not be
used to attempt to push policy changes as constitutional challenges. Appellee asserts
that Mr. Wiemold’s argument for cruel and unusual punishment is a facial challenge
with broad implications, and his claims cannot succeed under the facial challenge
standard. Appellee further argues that Mr. Wiemold cannot meet the requirements of
a rational basis review for the equal protection selective enforcement claim.
II. STANDARD OF REVIEW
After the final judgment of a municipal court, a defendant may appeal to the
district court within thirty-five (35) days. Crim. P. 37.1.; C.R.M.P. 237.
The trial court’s order denying Appellant’s Motion to Dismiss and Motion to
Vacate may be dependent on factual findings. People v. Mershon, 874 P.2d 1025, 1034
(Colo. 1994) (en banc). On review, this Court gives deference to the trial court’s factual
findings if they are adequately supported by competent evidence in the record. Id.; People
v. Matheny, 46 P.3d 453, 461 (Colo. 2002) (en banc). When reviewing questions of law,
the appellate court need not defer to the trial court. Id. (citing Evans v. Romer, 854 P.2d
1270, 1274 (Colo. 1993). The appellate court’s application of the legal standard to the
facts, which resolves the “ultimate constitutional question,” merits de novo review. People
v. Al-Yousif, 49 P. 3d 1165, 1169 (Colo. 2002) (en banc) (citing Matheny, 46 P.3d at 462).
Whether a punishment is in violation of the Eighth Amendment and article II, §
20 of the Colorado Constitution is a question of law and does not require deference to
the municipal court. Wells-Yates v. People, 454 P.3d 191, 204 (Colo. 2019); Melton v. People,
451 P.3d 415, 417 (Colo. 2019) (citing Mershon, 874 P.2d at 1035). When reviewing
challenges to the Fourteenth Amendment any legal issues relating to the
constitutionality of a city ordinance is decided de novo. Joel v. City of Orlando, 232 F.3d
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1353, 1357 (11th Cir. 2000). Therefore, the Court’s review of both issues presented is
de novo.
III. DISCUSSION
a. Cruel and Unusual Punishment
The Eighth Amendment and article II, § 20 of the Colorado Constitution state:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. Amend. VIII; Colo. Const. art. II, § 20.
Here, Appellant challenges the municipal court’s denial of his Motion to
Dismiss and Motion to Vacate and argues that when he was cited for sleeping in his
vehicle at the rest stop when he could not stay at a shelter. And, because he was
sleeping outdoors involuntarily, it is cruel and unusual punishment to criminalize his
sleeping outdoors.
Appellee argues that Mr. Wiemold never attempted to access shelter the night
he was cited. Appellee asserts that Mr. Wiemold had a vehicle, so he could access a
shelter in an alternative location, or that he had financial means to purchase shelter
and chose not to. Appellee further asserts Mr. Wiemold’s camping was therefore
voluntary.
i. Case Law Standard
Both parties rely heavily upon Martin v. City of Boise, 902 F.3d 1031 (9th Cir.
2018), cert. denied, 920 F.3d 584 (2019); Powell v. Texas, 392 U.S. 514 (1968); Robinson v.
California, 370 U.S. 660 (1962); Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir.
2006); and Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000). The parties also cite
to various United States District Court opinions that are related to the issues in this
case, but which are less persuasive. With no precedent in the Colorado courts, this
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Court looks primarily to the federal cases from the U.S. Supreme Court and Courts of
Appeals.1
Appellant argues that courts have held it unconstitutional to impose a criminal
sanction on a person who is homeless for sleeping on public property when that
person could not access shelter. Appellee asserts that the Court should decline to
follow the case law supporting Appellant’s position.
In Martin, the court held that the “Eighth Amendment prohibits the imposition
of criminal penalties for sitting, sleeping, or lying outside on public property for
homeless individuals who cannot obtain shelter.” Martin, 902 F.3d at 1048. The Martin
court held that the Cruel and Unusual Punishment Clause precludes enforcement of a
statute prohibiting sleeping outside against individuals who are homeless with no
access to shelter. Id. at 1046. The Martin decision pulls much of its analysis from the
Jones, Powell, and Robinson opinions. See id. at 1046–49.
In Robinson, the defendant was convicted under a statute that made it a
misdemeanor for a person to use narcotics or be addicted to the use of narcotics.
Robinson, 370 U.S. at 662. The court distinguished between the use of narcotics being
the act of using narcotics and the addiction to narcotics being based upon condition
or status. Id. The court held that a statute that criminalizes status means a defendant
“may be prosecuted at any time before he reforms” and was unfair to a defendant
with that status. Id. at 666. The Robinson court determined that the State recognized
narcotic addiction to be an illness, one which could be contracted innocently or
involuntarily; thus, the statute at issue imposed cruel and unusual punishment by
criminalizing status. Id. at 667.
1 Rather than summarize all the numerous cases mentioned by the parties, the Court bases its findings on the most
pertinent cases. The Court finds it unnecessary to discuss each individual case that was cited, particularly those
peripheral to the analysis here.
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The plurality opinion in Powell interpreted Robinson to prohibit only
criminalization of status and not criminalization of “involuntary” conduct. Powell, 392
U.S. at 533; Martin, 902 F.3d at 1047; Jones, 444 F.3d at 1133. The Powell opinion held
that Robinson did not deal with whether conduct can be constitutionally punished
because it is “involuntary.” Powell, 392 U.S. at 533. Justices Black and Harlan
concurred with the decision and amplified the reasoning to include that “punishmen t
for a status is particularly obnoxious, and in many instances can reasonably be called
cruel and usual, because it involves punishment for a mere propensity, a desire to
commit an offense.” Powell, 392 U.S. at 543 (Black, J., concurring). But the
concurrence agreed with the plurality opinion, as to the question of whether an act is
“involuntary” as being elusive and the court’s limitation of Robinson to pure status
crimes was proper. Id. at 544.
Justice White concurred, but alternatively reasoned that some chronic
alcoholics are also homeless and in those instances there may be no other place to
drink or be drunk except on the streets. Powell, 392 U.S. at 551 (White, J., concurring);
Martin, 902 F.3d at 1047. Justice White further explained that when the statute at issue
is applied to individuals who are homeless, and who cannot avoid public places while
intoxicated, then it was a violation of the Eighth Amendment to convict them of the
act of getting drunk. Powell, 392 U.S. at 551 (White, J., concurring); Martin, 902 F.3d at
1047. The four dissenting Justices held a position similar to Justice White’s,
determining that “criminal penalties may not be inflicted upon a person for being in a
condition he is powerless to change.” Powell, 392 U.S. at 567 (Fortas, J. dissenting);
Martin, 902 F.3d at 1048; Jones, 444 F.3d at 1133. The dissenting Justices further
addressed the involuntariness of Powell’s behavior and the obvious comparison to the
facts in Robinson. Powell, 392 U.S. at 567 (Fortas, J. dissenting); Martin, 902 F.3d at
1048; Jones, 444 F.3d at 1133–34. Accordingly, in the 4-1-4 decision, five Justices in
Powell understood that under Robinson, the Eighth Amendment prohibits the state
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from punishing an involuntary act or condition if it is the unavoidable consequence of
one’s status or being. Martin, 902 F.3d at 1048; Jones, 444 F.3d at 1135.
Appellee argues the Court should not look to Powell for guidance because
Marks v. U.S., 430 U.S. 188 (1977), applies to the fragmented decision. Appellee
argues that Powell changes nothing and Robinson should be relied on to address these
issues. However, Appellee’s reasoning is flawed. The Marks court held when a
fragmented court decides a case and no single rationale explaining the result has the
agreement of five Justices, the holding may be viewed as the position taken by those
Justices who concurred in the judgment on the narrowest grounds. Marks, 430 U.S. at
193 (citing Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976)). The direct application of
Marks would essentially render the Powell decision useless as precedent. However, a
strict reading of Marks suggests the assent of five Justices supports the majority
Justices’ reasoning. Although Justice White’s concurrence and the dissents did not
share complete agreement, the reasoning they did agree upon should be considered a
majority, and thus persuasive.
Both the Ninth and Fourth Circuits discussed Powell in detail and concluded
that Justice White’s concurring opinion was highly persuasive. Martin, 902 F.3d at
1047–48; Jones, 444 F.3d at 1133–36; Manning v. Caldwell, 930 F.3d 264, 281–84. The
court in Manning determined it would not ignore the reasoning by Justice White,
because his opinion was shared by four other Justices and provided important
reasoning for cases related to individuals who are homeless. Manning, 390 F.3d at 282.
Justice White made clear that although he voted to affirm Powell’s conviction it was
not because of the act-status theory in the plurality opinion, but solely because Powell
failed to produce facts to establish involuntariness of his public alcoholism. Id. Similar
to the mentioned cases, this Court does not simply set aside the Powell opinion, but
adopts the interpretation of the five Justices in Powell as persuasive authority.
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Appellee argues that Joel held that the ordinance at issue did not violate the
Eighth Amendment because of the conduct/status distinction. Joel v. City of Orlando,
232 F.3d 1353 (2000). In Joel, the defendant argued that the ordinance at issue
punished persons as a result of their status of being homeless. Joel, 232 F.3d at 1361.
Joel argued that the Robinson case supported this argument, as does Pottinger v. City of
Miami, 810 F.Supp. 1551 (S.D.Fla. 1992) and Johnson v. City of Dallas, 860 F.Supp. 344
(N.D.Tex. 1994). Id. at 1361–62. The court held that the reasoning in Pottinger and
Johnson specifically relied on the lack of sufficient homeless shelter spaces, and those
courts reasoned that sleeping in public was involuntary for those who could not get
shelter. Id. at 1362. The court further determined that, if it followed the reasoning
from Pottinger and Johnson, the Joel case is clearly distinguishable because the ordinance
does not criminalize involuntary behavior; Joel had an opportunity to comply with the
ordinance. In Joel, the court reasoned that the plurality opinion in Powell supported
that the ordinance in Joel targeted conduct and did not punish based on status. Id. The
Joel court’s reasoning clearly recognized Pottinger and Johnson but held that these cases
did not apply to Joel because the city demonstrated that the homeless shelter had
never reached maximum capacity. Because of this difference in facts, the cases Joel
presented in his argument were not particularly persuasive.
Under the above analysis, the state cannot criminalize the consequence of one’s
status of being homeless. This Court must therefore consider the distinction between
an involuntary act or condition and a voluntary one.
ii. Involuntary
The Eighth Amendment prohibits the state from punishing an involuntary act
if it is the unavoidable consequence of one’s status or being. Jones, 444 F.3d at 1135.
The consensus among the Fourth, Ninth and Eleventh Circuits is that the Eighth
Amendment prohibits criminal penalties for sleeping outside on public property for
those individuals who are homeless who cannot obtain shelter. Manning, 930 F.3d 264;
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Jones, 444 F.3d 1118; Martin, 902 F.3d 1031; Joel, 232 F.3d 1353. Additionally, a
multitude of Federal District Courts have utilized Robinson, Powell, and Jones to
determine that, without available shelter space, criminalizing camping is criminalizing
involuntary conduct. Pottinger, 810 F.Supp. at 1564 (holding that arresting the
homeless for involuntary acts such as sleeping in public is cruel and unusual); Johnson,
860 F.Supp. at 350 (“as long as the homeless have no other place to be, they may not
be prevented from sleeping in public . . . but as long as homeless persons must live in
public, their sleeping may not be constitutionally criminalized”); Cobine v. City of
Eureka, 250 F.Supp.3d 423, 432 (N.D. Tex. 2017) (holding that the factual record
must establish that there was no available or adequate homeless shelter space for the
camping ordinance to be criminalizing involuntary conduct as a result of
homelessness); Anderson v. City of Portland, Civ. No. 08–1447–AA, 2009 WL 2386056,
at *7 (D. Or. July 31, 2009) (holding that people who are homeless cannot access
shelters for various factors and to enforce anti-camping ordinances criminalizes them
for being homeless). Courts have held that when individuals who are homeless cannot
obtain shelter, criminalizing sleeping violates the Cruel and Unusual Punishment
Clause. Jones, 444 F.3d 1136.
The Jones court held that involuntary conduct and status are inseparable,
specifically as it relates to humans who are biologically compelled to rest, whether that
be sitting, lying, or sleeping. Id. The Martin court held that a municipality cannot
criminalize behavior consistently with the Eighth Amendment when no space is
available in any shelter. Martin, 902 F.3d at 1048. Involuntary behavior cannot be
criminalized under the Eighth Amendment; this Court must therefore determine
whether Appellant’s inability to stay at a shelter on September 11, 2018 was
involuntary.
Appellant argues that he had no choice except to sleep outdoors on the
morning he was cited. Appellant asserts because of his employment at Catholic
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Charities he could not stay at either homeless shelter in Fort Collins that accepts adult
men. Appellant further asserts that both Fort Collins shelters were full that night.
Appellee argues that Mr. Wiemold’s camping was voluntary. Appellee asserts
that Mr. Wiemold was employed full time with a working vehicle and was camping to
get out of debt, therefore was voluntarily camping. Appellee asserts that Mr. Wiemold
chose an employer who prohibits him from accessing the Fort Collins shelters.
Appellee asserts Mr. Wiemold had choices he chose to ignore, for example, he could
drive to Loveland and say at a shelter there or drive a mile or two outside of Fort
Collins and legally camp there. Appellee asserts that Appellant had a variety of options
and instead voluntarily chose to camp illegally.
Appellant is a shelter supervisor at Catholic Charities. Appellant’s supervisor,
Joe Domko, the regional director of Catholic Charities of Larimer County, confirmed
that many people who stay at Catholic Charities also stay at the other shelter in Fort
Collins. Mr. Domko confirmed that all employees, including Appellant, are given a
copy of the Employee Handbook. He testified that the fraternization policy was in
effect at Catholic Charities when Appellant was cited for camping. Policy 3.24 in the
employee handbook, “Fraternization with Clients/Boundaries,” states, “Staff may
only interact with clients at the Agency itself or at the Agency-sponsored activities,
only during the staff person’s assigned working hours, and only within the scope of
the employee’s job description.” Ex. 8, Catholic Charities Employee Handbook pg.
28.
Mr. Domko further testified that the night of September 10, 2018, Catholic
Charities’ shelter was full. The report shows the shelter was at one hundred percent
capacity, and that same report indicates that FCRM was also full but had not yet
turned away any clients. Mr. Domko testified that when people are turned away from
Catholic Charities, they are directed to FCRM if FCRM has capacity.
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Appellant testified that when he was cited, he had been working for Catholic
Charities for four years. He testified that he could not stay at either Fort Collins
shelter on the night he was cited because of the fraternization policy. Appellant
indicated that staying at either shelter would implicate safety concerns. Appellant
testified that, as a shelter supervisor he had to ensure rules were being followed and
suspend people who failed to follow the rules. Appellant testified he has suspended
between one to two people per week during his time as a shelter supervisor. Because
on these suspensions, Appellant testified that staying at FCRM could be unsafe if he
were to encounter a person he had suspended from Catholic Charities.
On cross examination, Appellant testified that when he was cited, he had
continuous employment and no dependents to support. Appellant testified that he
had excessive debt and could not afford to both pay his credit card bills and pay for
housing. Appellant testified that he had too much pride to declare bankruptcy and he
didn’t want to stop paying his credit card bills and risk going into collections.
Appellant testified that if he stopped paying his credit card bills, he could afford an
apartment or room to rent. Mr. Wiemold testified that he was able to pay off $10,000
over two years by camping. Appellant testified that he did not seek low income
housing and he did not try to go to a nearby shelter in Loveland or another nearby
city. Appellant testified that he searched for a room on Craigslist and could not find
an affordable option, and that he had stopped looking for a room by September 2018.
Mr. Wiemold testified that he could only afford to stay in a hotel or motel about twice
a week or twice a month. Further, Appellant testified that he did not look for a
different job, and he did not ask his boss for an exception to the fraternization rule to
allow him to sleep at one of the Fort Collins shelters.
Appellee asks the Court to make a subjective decision as to whether Appellant
could afford shelter. The Martin court held that its decision did not apply to people
who choose not to use temporary shelter they can pay for or shelter available for free.
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Martin, 920 F.3d at 617. Appellee provides no case law to support an in-depth analysis
of the factors a court should apply to determine voluntary homelessness. With no case
law to support a decision about consideration of individual personal factors that
attribute to homelessness, the Court will not consider whether Mr. Wiemold made
valid choices here.
Appellee asks the court to consider Appellant’s choices under the dictionary
definition of “involuntary.” The Court looks to the case law to determine what is
“involuntary” as it relates to individuals who are homeless under the Eighth
Amendment. The holding in Martin is clear if there is no access to shelter, people who
are homeless cannot be presumed to have a choice in the decision to sleep outdoors.
Martin, 902 F.3d at 1048. In Jones, the court held that an individual may become
homeless based on factors both within and beyond his immed iate control. However,
just because Appellant may be able to obtain shelter on some nights or eventually
escape homelessness altogether does not render his status at the time of citation to be
any less worthy of protection. Jones, 444 F.3d at 1137.
There is no dispute that the Catholic Charities shelter and FCRM shelter were
both at capacity on the night Appellant was cited. Further, the record shows that, due
to Mr. Wiemold’s employment, it would not have been practicable, realistic, or safe
for Appellant to stay at one of the Fort Collins shelters. The Court declines to impose
subjective determinations about whether Mr. Wiemold’s personal factors led to a
volition to remain homeless. The case law is clear that shelter availability determines
the standard of voluntary or involuntary homelessness. The Court concludes that
shelter was unavailable to Appellant on the night he was cited, and thus his
homelessness was involuntary.
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iii. As-applied vs. Facial Challenge
Appellee argues that Appellant’s Eight Amendment claim is a facial challenge,
not an as-applied challenge. Appellee argues that Mr. Wiemold has brought his appeal
under his individual circumstances but seeks relief that is much broader. Appellee
argues that Mr. Wiemold seeks a decision that would determine that camping for
people who are homeless is always involuntary, so anytime the Fort Collins shelters
are full the camping prohibition is unenforceable. Appellee argues that Appellant’s
constitutional challenge specifically asks the Court for a decision that will carry legal
effects beyond only Mr. Wiemold which makes this a facial challenge.
Appellant asserts that he is not arguing that the ordinance is always
unconstitutional, only that it is unconstitutional as applied to his circumstances. Mr.
Wiemold asserts that under his particular circumstances there was no shelter available
to him in Fort Collins, so it would be unconstitutional to impose a criminal sanction
against him for camping at the rest area. Appellant asserts there is likely no other
employee at the shelter who is also homeless, so the Court’s decision would be
confined to only his circumstances.
The difference between a facial challenge to the constitutionality of a statute
and an as-applied challenge is that an as-applied challenge asserts that the statute
would be unconstitutional under the circumstances specific to an individual. Sanger v.
Dennis, 148 P.3d 404, 410 (Colo. App. 2006). When a statute is held unconstitutional
as-applied, that statute may be applied to the specific challenge but is otherwise
enforceable and could be applied in the future in a similar context. Id.; Minnesota
Majority v. Mansky, 708 F.3d 1051, 1059 (8th Cir. 2013). A facial challenge alleges that
there are no circumstances when the statute can be applied constitutionally. People v.
Trujillo, 369 P.3d 693, 697 (Colo. App. 2015).
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Appellee argues this case provides a gray area between a facial challenge and an
as-applied challenge. The Court disagrees. Appellant has brought this case alleging
that based on his unique circumstances, the citation of public camping is
unconstitutional as applied to him. The facts here would likely not apply to other
individuals who are homeless in Fort Collins who would have access to either shelter
in Fort Collins. Appellant does not argue that this statute is unconstitutional as to all
individuals who are homeless each time they do not have access to shelter in Fort
Collins. Based on the facts specific to this case and Mr. Wiemold’s inability to stay at
the shelters because of his job, the Court finds his claim to be a constitutional
challenge as-applied to the Appellant specifically.
b. Selective Enforcement in Violation of the Fourteenth Amendment
Appellant argues that when he received his citation, the officers intentionally
targeted and enforced the camping ordinance against only individuals who are
homeless. Appellant argues this was selective enforcement and violates the Fourteenth
Amendment. Appellant argues the evidence shows that the officers’ enforcement at
the rest area was intentionally aimed at the individuals who are homeless parked at the
rest stop and not the vehicles parked in the truck parking lot. Appellant argues there
is no rational basis for the officers to selectively target him or the people who are
homeless inside their vehicles while not enforcing the ordinance against the truck
drivers who engaged in the same activity.
Appellee argues that Mr. Wiemold has failed to show there is a discriminatory
effect. Appellee asserts that the evidence does not establish that all of the other
individuals cited were homeless, and there is no evidence to establish that there were
similarly situated individuals who were not cited. Appellee notes that Mr. Wiemold
testified that he could not be sure whether any trucks were present in the truck lot
when he went to sleep and still there when he woke up. Appellee further argues the
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parking lots are separate with different regulations, hence the trucks parked in the truck
lot were not similarly situated. Appellee asserts there is an obvious rational basis to
enforce in the car lot because the increase of problems and damage in the car parking
lot and conditions of the rest area. Appellee argues because the record does not
establish these facts, Mr. Wiemold cannot prove a claim for selective enforcement
under the Fourteenth Amendment.
Given the Court’s decision on the Eighth Amendment above, the Court
need not address the Fourteenth Amendment argument.
IV. CONCLUSION
The Court finds that the hearing officer’s decision was erroneous. On appeal
the Court REVERSES the decision of the Fort Collins Municipal Court. The Court
REMANDS the matter to the municipal court and directs that Appellant’s Motion to
Vacate be granted and Mr. Wiemold’s charges be dismissed.
SO ORDERED.
Dated: February 4, 2021.
BY THE COURT:
Julie Kunce Field
District Court Judge
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