Harty v. United States ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 3, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOHN M. HARTY,
Plaintiff - Appellant, No. 09-2197
v. (D. New Mexico)
UNITED STATES OF AMERICA, (D.C. No. 1:09-CV-00493-GBW-LFG)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
John Harty appeals from the district court’s dismissal of his civil rights
suit. Harty sued the United States of America and the “people of” the United
States of America under 42 U.S.C. § 1983. The district court dismissed Harty’s
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
complaint pursuant to 28 U.S.C. § 1915, concluding the complaint was so
incomprehensible as to be implausible. Gann v. Cline, 519 F.3d 1090, 1092 (10th
Cir. 2008) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
particular, the district court noted that although Harty filed his complaint pursuant
to § 1983, he failed to identify any (1) individuals operating under color of state
law who (2) deprived him of a federal right. Gomez v. Toledo, 446 U.S. 635, 640
(1980) (noting both elements must be satisfied for a plaintiff to proceed under
§ 1983). Furthermore, the district court noted the overwhelming majority of the
conduct set out in the complaint occurred many years in the past and all of the
conduct occurred outside New Mexico. Thus, not only did it appear Harty’s
claims were time barred, there was nothing in the complaint to indicate the
district court had personal jurisdiction over any potential defendant.
Nevertheless, the district court dismissed Harty’s complaint without prejudice
because “it is possible that he may have some legitimate causes of action within
an appropriate statute of limitations that can be filed in another forum.”
This court has reviewed the district court’s order of dismissal de novo.
That close review demonstrates no reversible error. In particular, we agree with
the district court that there is absolutely no indication in the complaint any
potential defendant is subject to the personal jurisdiction of the United States
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District Court for the District of New Mexico. 1 Accordingly, the district court’s
order of dismissal is hereby AFFIRMED for substantially those reasons set out in
the district court’s order dated July 22, 2009.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
1
Because there is absolutely no indication the additional evidence Harty
asks this court to consider bears on the question of personal jurisdiction, Harty’s
pending Motion to Supplement Record on Appeal is hereby DENIED.
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