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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 051.1 - Exhibit AAmber Tamborello Neutral As of: May 13, 2022 4:44 PM Z 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 Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 1 of 28 Page 2 of 11 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 2 of 28 Page 3 of 11 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 3 of 28 Page 4 of 11 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 4 of 28 Page 5 of 11 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 5 of 28 Page 6 of 11 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 6 of 28 Page 7 of 11 Amber Tamborello 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. 853 Fed. Appx. 235, *239; 2021 U.S. App. LEXIS 11927, **11 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 7 of 28 Page 8 of 11 Amber Tamborello 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 853 Fed. Appx. 235, *241; 2021 U.S. App. LEXIS 11927, **14 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 8 of 28 Page 9 of 11 Amber Tamborello 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 853 Fed. Appx. 235, *242; 2021 U.S. App. LEXIS 11927, **18 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 9 of 28 Page 10 of 11 Amber Tamborello 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 853 Fed. Appx. 235, *243; 2021 U.S. App. LEXIS 11927, **22 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 10 of 28 Page 11 of 11 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 11 of 28 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 12 of 28 Page 2 of 4 Amber Tamborello 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)." 3 773 Fed. Appx. 463, *463; 2019 U.S. App. LEXIS 14267, **1 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 13 of 28 Page 3 of 4 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 14 of 28 Page 4 of 4 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 15 of 28 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 16 of 28 Page 2 of 4 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 17 of 28 Page 3 of 4 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 18 of 28 Page 4 of 4 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 19 of 28 Amber Tamborello 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). Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 20 of 28 Page 2 of 9 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 21 of 28 Page 3 of 9 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 22 of 28 Page 4 of 9 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 23 of 28 Page 5 of 9 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 24 of 28 Page 6 of 9 Amber Tamborello [*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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 25 of 28 Page 7 of 9 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 26 of 28 Page 8 of 9 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 27 of 28 Page 9 of 9 Amber Tamborello 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 Case 1:21-cv-02306-RM-KLM Document 51-1 Filed 05/13/22 USDC Colorado Page 28 of 28