Robinette v. Fender , 624 F. App'x 664 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
BONNER ROBINETTE; SHIRLEY
ROBINETTE,
Plaintiffs - Appellants,
v. No. 15-1113
(D.C. No. 1:10-CV-02172-CMA-KLM)
BOBBIE FENDER, in his individual and (D. Colo.)
professional capacities; AMBER
FENDER, in her individual and
professional capacities; STEVE
SCHMIDT, in his individual and
professional capacities; CHARLES
HAMBY, in his individual and
professional capacities; SEAN SMITH, in
his individual and professional capacities,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, GORSUCH, and McHUGH, Circuit Judges.
_________________________________
Bonner and Shirley Robinette have feuded with their neighbors in Bayfield,
Colorado, for years about where their property ends and the neighbors’ begins. The
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
current litigation began when several off-duty county sheriff’s office employees —
two of whom were daughter and son-in-law to the neighbors — removed the
Robinettes’ old jeep and other items from the disputed land without permission. The
Robinettes filed suit, alleging various constitutional and state law violations. After
much back and forth in the district court, the case boiled down to two claims: one
against the four off-duty deputies who removed (or took possession of) the personal
property, and the other against a fifth deputy who sent an email about the dispute
after investigating ownership of the contested land. In the end, the district court
granted summary judgment in favor of the deputies and dismissed the case — and it
is this decision the Robinettes now ask us to reverse.
Before getting to the merits, the deputies say we must dismiss this appeal
because the Robinettes’ notice of appeal was untimely. And it’s true the Robinettes
filed their notice of appeal one week after the relevant deadline. But the Robinettes
did — before the deadline — file a motion for an extension of time to file a notice of
appeal. And because that motion was the “functional equivalent” of a notice of
appeal, we may lawfully reach the appeal’s merits. See Smith v. Barry, 502 U.S 244,
248-49 (1992); United States v. Smith, 182 F.3d 733, 735-36 (10th Cir. 1999).
Even so, we don’t see how we might reverse. While we must afford the
Robinettes’ pro se pleadings a liberal construction, we may not serve as their attorney
or advance “arguments and search[] the record” for them. Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Yet even on the most liberal
of constructions, the Robinettes’ briefing in this appeal does not present “contentions
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and the reasons for them, with citations to the authorities and parts of the record on
which the appellant relies.” Fed. R. App. P. 28(a)(8)(A). Instead, their opening brief
contains only conclusory allegations, a few statutory references, and a handful of
case citations with no analysis. Citing Rule 28, we have routinely “declined to
consider arguments that are not raised, or are inadequately presented” in cases like
this, Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007), and we find
ourselves forced to do so again here. Neither would the result change were we forced
to come up with arguments for the Robinettes, for our independent scrutiny of the
record has turned up nothing calling into question the propriety of the district court’s
disposition.
Affirmed.
Entered for the Court
Neil M. Gorsuch
Circuit Judge
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