Schwers v. City of Albuquerque , 685 F. App'x 670 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 14, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CLAYTON ANDREW SCHWERS,
Plaintiff - Appellant,
v. No. 16-2262
(D.C. No. 1:15-CV-00237-RB-WPL)
CITY OF ALBUQUERQUE; MAYOR (D. New Mexico)
RICHARD BERRY; RAYMOND
SCHULTZ, Chief of Police, APD (former);
CHRISTOPHER KERLIN, APD Officer;
JOHN MINGS, APD Officer,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
_________________________________
Clayton Andrew Schwers1 appeals the district court’s dismissal of his lawsuit
as a sanction for untruthfulness during discovery. Mr. Schwers sued Albuquerque
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
Because Mr. Schwers is proceeding pro se, we construe his filings liberally.
See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). “[T]his rule of liberal
city police officers Christopher Kerlin and John Mings2 for using excessive force
during Mr. Schwers’s arrest. After the arrest, Mr. Schwers admitted to his emergency
room physician that he struggled with the police and resisted restraint, and that this
led to the police officers using a Taser on Mr. Schwers at least four times. He also
admitted to biting one of the officers. The physician reported that Mr. Schwers was
“acutely intoxicated upon arrival with a blood alcohol level of [.]151.” Mr. Schwers
pled guilty to crimes incident to the arrest.3
During discovery, however, Mr. Schwers denied having alcohol that day,
denied biting the officer, and denied resisting arrest. His responses to interrogatories
were either “untruthful or nonsensical,” even after the magistrate judge ordered Mr.
Schwers “to provide complete answers and warned him that failure to comply with
the order could lead to sanctions, including dismissal of the case.”
Accordingly, Officers Kerlin and Mings moved for dismissal as a sanction for
Mr. Schwers’s violation of the rules of discovery. In his response, Mr. Schwers “did
not address the discrepancies between his sworn testimony and his statements to his
construction stops, however, at the point at which we begin to serve as his advocate.”
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
2
In addition, Mr. Schwers listed as defendants the City of Albuquerque,
Mayor Richard Berry, and Chief of Policy Raymond Schultz. The district court
dismissed these defendants after concluding Mr. Schwers failed to state a claim
against them. Mr. Schwers did not appeal this order.
3
These crimes included (1) aggravated battery upon a peace officer; (2)
criminal damage to property (over $1,000); (3) resisting, evading, or obstructing an
officer; and (4) concealing identity.
2
medical doctor and his guilty plea related to the arrest.” The district court
meticulously analyzed each of the relevant factors we identified in Ehrenhaus v.
Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), to conclude dismissal would be an
appropriate sanction:
Mr. Schwers lied about his encounter with [Mr. Kerlin and Mr. Mings],
and despite his guilty plea denied that he engaged in the activities
leading to his arrest. He admitted to his treating physician that he bit an
Officer, but subsequently denied this in the interrogatories and
deposition. He also denied having consumed alcohol, but his medical
records show otherwise. Given Mr. Schwers’s repeated contradictions
and lies and his failure to comply with the discovery process, the
Ehrenhaus factors weigh in favor of dismissal. Mr. Schwers has
flaunted the rules of civil procedure by failing to take the discovery
process seriously.
Mr. Schwers appeals the district court’s order of dismissal. But Mr. Schwers
has failed to present any argument as to how the district court abused its discretion in
sanctioning him. See Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (“A
district court undoubtedly has discretion to sanction a party . . . for failing to comply
with local or federal procedural rules. Such sanctions may include dismissing the
party’s case with prejudice or entering judgment against the party.”). Instead, Mr.
Schwers’s appellate briefs rehash the allegations in his amended complaint, without
even mentioning that the district court dismissed his case as a sanction for failing to
comply with discovery requests. “It is insufficient merely to state in one’s brief that
one is appealing an adverse ruling below without advancing reasoned argument as to
the grounds for the appeal.” Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011)
(internal quotation marks omitted).
3
We conclude Mr. Schwers has failed to present any reasoned, nonfrivolous
arguments on appeal to explain how the district court abused its discretion in
sanctioning him. Moreover, we agree with the district court’s thorough analysis of
the Ehrenhaus factors and its conclusion that this case should be dismissed with
prejudice. Accordingly, we affirm the district court’s decision for substantially the
same reasons set forth in its order dated October 26, 2016. We also deny Mr.
Schwers’s motion to proceed in forma pauperis.4
Entered for the Court
Carolyn B. McHugh
Circuit Judge
4
Mr. Schwers filed a motion for leave to proceed in forma pauperis (IFP) on
appeal. The district court denied the motion because it found Mr. Schwers’s appeal
was not taken in good faith when his “response to the ‘issues on appeal’ question . . .
[did] not reveal any argument of error regarding the Court’s dismissal of his claims.”
Mr. Schwers renewed his IFP motion in this court, but we agree with the district
court’s analysis.
4