Hayner v. City and County of Denver ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 30, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
THOMAS HAYNER,
Plaintiff - Appellant,
v. No. 18-1426
(D.C. No. 1:18-CV-00750-LTB)
CITY AND COUNTY OF DENVER; (D. Colo.)
DENVER DISTRICT ATTORNEY’S
OFFICE; DENVER POLICE
DEPARTMENT; DENVER SHERIFF
DEPARTMENT; DENVER
DEPARTMENT OF PUBLIC SAFETY;
DENVER COUNTY COURT; DENVER
DISTRICT COURT; DENVER COUNTY
CLERK AND RECORDER’S OFFICE;
DENVER COUNTY COURT OFFICE OF
THE PRESIDING JUDGE; DENVER
PRETRIAL SERVICES; DENVER
ADULT PROBATION SERVICES;
DENVER MAYOR’S OFFICE; 18TH
JUDICIAL DISTRICT OFFICE OF THE
DISTRICT ATTORNEY, ARAPAHOE
COUNTY COURT; STATE OF
COLORADO; COLORADO ATTORNEY
GENERAL; COLORADO OFFICE OF
THE STATE PUBLIC DEFENDER;
COLORADO BUREAU OF
INVESTIGATIONS; COLORADO
ATTORNEY REGULATION COUNSEL;
COLORADO SUPREME COURT;
COLORADO OFFICE OF THE
GOVERNOR; DENVER HEALTH;
FEDERAL BUREAU OF
INVESTIGATIONS; MITCHELL
MORRISEY; GEORGE BRAUCHLER;
BETH MCCANN; CYNTHIA
COFFMAN; HELEN MORGAN;
BONNIE BENEDETTI; CLINTON
MCKINZIE; ASHLEY BECK; JUDGE
HADA; JUDGE CAMPBELL; JUDGE
MARCUCCI; JUDGE RODARTE;
JUDGE GERDES; LARRY BAILEY;
JOANNA STUART; WADI MUHAISEN;
AMANDA BECKER; SIDDHARTHA
RATHOD; R. SCOTT REISCH; V. IYER;
JOSEPH LAZZARA; STEPHANIE
O’MALLEY; NICK MITCHELL;
MAYOR HANCOCK; DENVER POLICE
(DP) CHIEF WHITE; DP COMMANDER
RON THOMAS; DP DETECTIVE GREY;
DP DETECTIVE NUNEZ DE OVALLE;
DP DETECTIVE STEGMAN; DENVER
SHERIFF (DS) PATRICK FIRMAN; DS
DEPUTY SIMON CRITTLE; DS
DEPUTY BOSWELL; NURSE KELLY
SMITH; JASON ROMPORTL;
HEATHER BECKER; TEGNA, INC.;
9NEWS; NBC; ANASTASIA
KUZMINSKAYA; STEVEN CARTER;
GOVERNOR JOHN HICKENLOOPER;
FBI AGENT MARK UNKNOWN; FBI
AGENT TAKAHARA; DENISE L.
HAYNER; THOMAS M. HAYNER;
DOUGLAS COUNTY SHERIFF’S
DEPARTMENT; DOUGLAS COUNTY
SHERIFF SPURLOCK; DOUGLAS
COUNTY SHERIFF’S DEPUTY K;
DOUGLAS WILSON, and OTHER
INVOLVED PARTIES; DENVER
COUNTY COURT, Office of the Presiding
Judge,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the Plaintiff’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
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_________________________________
Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.
_________________________________
In March 2018, Plaintiff Thomas Hayner, a state prisoner, filed a pro se
complaint pursuant to 42 U.S.C. § 1983 in the District of Colorado against seventy-
three defendants. In his complaint, Plaintiff asserted (1) a state law defamation
claim; (2) a claim that various individuals and agencies failed to investigate
Plaintiff’s “valid complaint” and destroyed evidence between 2014 and 2018; and (3)
a claim that various individuals and agencies abused process in a plethora of ways
between 2014 and 2018. A magistrate judge ordered Plaintiff to amend his complaint
because the complaint did not comply with Federal Rule of Civil Procedure 8 and the
complaint combined multiple claims against different defendants that may not be
joined in a single action.
In September 2018, after the district court granted Plaintiff multiple
extensions, Plaintiff filed an amended complaint. The district court dismissed the
amended complaint without prejudice, noting Plaintiff made “little, if any, effort in
the amended Prisoner Complaint to correct the pleading problems identified” by the
magistrate judge. ROA 103–04. The district court also certified pursuant to 28
U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and, therefore,
denied in forma pauperis status for purposes of appeal.
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.
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Plaintiff filed a “Motion to Alter Judgment,” alleging his complaint complies
with Rule 8; his long, complex complaint is difficult to fit in thirty pages; Plaintiff is
not an attorney and his motions for appointment of counsel were denied; he does not
have access to adequate resources; he should have another opportunity to amend his
complaint; and he did not receive notice of the district court’s order. Before the court
ruled on this motion, Plaintiff filed a notice of appeal. The district court denied
Plaintiff’s “Motion to Alter Judgment,” and Plaintiff did not file an amended notice
of appeal or new notice of appeal.
On appeal, Plaintiff argues the district court abused its discretion by (1)
denying Plaintiff’s motion for appointment of counsel; (2) not allowing Plaintiff to
print and submit an amended complaint longer than thirty pages; (3) not ordering or
allowing a second amended complaint; (4) not construing Plaintiff’s pro se complaint
liberally; and (5) dismissing his amended complaint when it satisfied the pleading
requirements of Rule 8. Arguments made in Plaintiff’s “Motion to Alter Judgment,”
however, are not within the scope of this appeal because Plaintiff did not file an
amended notice of appeal. See Fed. R. App. P. 4(a)(4)(B)(ii); see also Soma Med.
Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1300 & n.2 (10th Cir. 1999).
We therefore address Plaintiff’s two arguments related to the district court’s
order of dismissal. As to Plaintiff’s contention that the court did not construe his
complaint liberally, we remind Plaintiff that the district court cannot “assume the role
of advocate for the pro se litigant.” See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). The district court struck the appropriate balance by construing Plaintiff’s
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complaint liberally but stopping short of forming Plaintiff’s arguments for him. As
to Plaintiff’s argument that his complaint satisfied Rule 8, the district court correctly
dismissed for lack of compliance with Rule 8 because, as the court noted, “[i]t still is
not clear what specific claims for relief [Plaintiff] is asserting, the specific factual
allegations that support each asserted claim, against which Defendant or Defendants
each claim is being asserted, or what any of the named Defendants did that allegedly
violated [Plaintiff’s] rights.” ROA 104.
Even if Plaintiff’s remaining arguments on appeal were within the scope of
this appeal, we would affirm for the following reasons. First, the district court
appropriately denied Plaintiff’s motion for appointment of counsel because Plaintiff
did not allege sufficient facts to show his claims have merit. See McCarthy v.
Weinberg, 753 F.2d 836, 838 (10th Cir. 1985) (“The burden is upon the applicant to
convince the court that there is sufficient merit to his claim to warrant the
appointment of counsel.”). Second, the district court did not abuse its discretion in
requiring Plaintiff to adhere to a strict page limit in this case, especially when
Plaintiff offers no explanation of what evidence he would have put forth in the
absence of such a limitation. See Timmerman v. U.S. Bank, N.A., 483 F.3d 1106,
1111–12 (10th Cir. 2007). Third, the district court is under no obligation to sua
sponte order a second amended complaint. See Fed. R. Civ. P. 15(a).
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The district court’s order is AFFIRMED. Plaintiff’s motion to proceed in
forma pauperis is DENIED, and Plaintiff is reminded of his obligation to pay the
filing fee in full.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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