Gibson v. Attorney General of the United States , 669 F. App'x 947 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 21, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ERIC WILMER GIBSON,
Plaintiff - Appellant,
v. No. 16-1163
(D.C. No. 1:15-CV-02374-LTB)
ATTORNEY GENERAL OF THE (D. Colo.)
UNITED STATES; DEPARTMENT OF
LABOR; NEW ORLEANS POLICE
DEPARTMENT; US CUSTOMS AND
BORDER PROTECTION; U.S. EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION; EMPIRE TERRACE,
LLC, 50.05%, RMA385 PART;
HUDSPETH COUNTY, Case 498205;
ALBERT HEIN, FBI Personnel Security,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
_________________________________
Plaintiff Eric Wilmer Gibson commenced suit in the district court by filing a
sixty-page complaint against a group of defendants including the United States
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Attorney General, the United States Department of Labor, the United States Custom
and Border Patrol, and the Equal Employment Opportunity Commission.
In an October 27, 2015 order, the magistrate judge determined that the
complaint was prolix and unintelligible. He ordered Mr. Gibson, within thirty days,
to file an amended complaint that complied with Rule 8(a) of the Federal Rules of
Civil Procedure’s requirement to state a short and plain statement of the grounds for
the court’s jurisdiction, a short and plain statement of his claims showing he is
entitled to relief, and a demand for the relief sought. The order cautioned Mr. Gibson
that his failure to comply could result in the dismissal of the action without further
notice.
Mr. Gibson’s response to the magistrate judge’s order was to first seek
permission to file a 150-page complaint, followed by a request to file a 301-page
complaint. On January 7, 2016, the district court entered an order that neither
proposed amended complaint met the requirements of Rule 8, and dismissed the case
for failure to comply with the magistrate judge’s order. A separate judgment
dismissing the case also entered on January 7.
On February 8, 2016, Mr. Gibson filed a motion to suspend the district court’s
order. The court treated the motion as filed under Rule 60(b) of the Federal Rules of
Civil Procedure, and denied it on February 11, 2016. Mr. Gibson filed a second
motion for relief from judgment on March 10, 2016. The court reviewed the motion
under Rule 60(b), and denied it on March 14, 2016.
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Mr. Gibson filed three motions on April 15, 2016: (1) to grant Rule 60 relief;
(2) to enforce the second amended complaint; and (3) to recuse the district court
judge. In an order dated April 18, 2016, the court denied the motions.
On May 6, 2016, Mr. Gibson filed several notices of appeal. But his appeal is
timely only as to the district court’s March 14, 2016 and April 18, 2016 orders.1
In Mr. Gibson’s appeal brief, he argues that the district court should not have
dismissed his complaint for failure to comply with the magistrate judge’s order to file
a complaint that complied with Rule 8: “[t]he District Court failed to properly apply
all aspects of Rule 8, FRCP to Plaintiff’s December 24, 2015 Amended Complaint
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Because Mr. Gibson’s motion to suspend the district court’s order (treated as
a Rule 60(b) motion) was filed more than twenty-eight days after judgment entered
on January 7, 2016, any appeal from that underlying order was due within sixty days,
or March 7, 2016, at the latest. And any appeal from the court’s February 11, 2016
order denying the motion for reconsideration, was due within sixty days, or April 12,
2016 at the latest. See Fed. R. App. P. 4(a)(1)(B), (4)(A)(vi); Ysais v. Richardson,
603 F.3d 1175, 1178-79 (10th Cir. 2010).
Mr. Gibson’s second motion for reconsideration, filed on March 10, 2016, and
which questioned the correctness of the denial of his Rule 60(b) motion, likewise did
not extend the time for filing a notice of appeal from the underlying final judgment.
See Yasis, 603 F.3d at 1178-79. However, any appeal from the denial of the second
motion was due no later than sixty days from the denial of the motion on March 14,
2016, or May 13, 2016. Therefore, Mr. Gibson’s notice of appeal, filed on May 6,
2016, was timely as to the denial of the second motion. See Fed. R. App. P.
4(a)(1)(B).
Mr. Gibson’s third group of motions, filed on April 15, 2016, likewise did not
extend the time for filing a notice of appeal from the underlying judgment, see Ysais,
603 F.3d at 1178-79; however, Mr. Gibson’s notices of appeal were timely as to the
denial of his third set of motions, see Fed. R. App. P. 4(a)(1)(B).
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documents filed, and to all subsequent Motions filed in this matter.” Aplt. Opening
Br. at 3.
But Mr. Gibson’s “Rule 8 argument” misses the mark because it concerns the
merits of the district court’s January 7, 2016 order. Instead, “[a]n appeal from a
denial of a Rule 60(b) motion addresses only the district court’s order denying the
motion, and not the underlying decision itself.” Servants of Paraclete v. Does,
204 F.3d 1005, 1009 (10th Cir. 2000). In other words, Mr. Gibson cannot use his
appeal of the denial of a Rule 60(b) motion as “a substitute for a direct appeal.” Id.
Mr. Gibson does not mention the motion to recuse in his opening brief, and we
deem it forfeited. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)
(“[T]he omission of an issue in an opening brief generally forfeits appellate
consideration of that issue.”). Because Mr. Gibson offers no challenge to the relevant
orders on appeal, we affirm the district court’s orders entered March 14, 2016 and
April 18, 2016.
We grant Mr. Gibson’s motions to supplement the record filed on July 13,
2016 and October 11, 2016. We deny Mr. Gibson’s motion to proceed in forma
pauperis and direct him to remit the full filing and docketing fee to the clerk of the
district court forthwith. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.
1991) (“In order to succeed on [a] motion [to proceed in forma pauperis] an appellant
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must show a financial inability to pay the required filing fees and the existence of a
reasoned, nonfrivolous argument on the law and facts”) (emphasis added)).
Entered for the Court
Gregory A. Phillips
Circuit Judge
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