Ombe v. State of New Mexico ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 8, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
HITOSHI OMBE,
Plaintiff - Appellant,
v. No. 18-2031
(D.C. Nos. 1:14-CV-00763-RB-KBM,
STATE OF NEW MEXICO; NEW 1:14-CV-00856-RB-KBM and
MEXICO PUBLIC EDUCATION 1:14-CV-00857-RB-KBM)
DEPARTMENT; NEW MEXICO (D. N.M.)
DIVISION OF VOCATIONAL
REHABILITATION SERVICES;
SUSANA MARTINEZ, HANNA
SKANDERA, ROSA LIMA, RICHARD
SMITH, JOHN FULLINWIDER, TERRI
DOUGLASS, ADRIAN APODACA,
SUSAN LOPEZ, REYES R. GONZALES,
AVA GUTIERREZ, LEE MARTINEZ,
GARY LUCAS, CAROL DAY, TANYA
SHATZ, MARTHA JARAMILLO,
PATRICIA GUILINO, EARNEST O.
PACHECO, RALPH VIGIL, and ADAM
CARRASCO, in their official, personal,
and conjugal partnership capacities;;
DISABILITY RIGHTS NEW MEXICO;
THE BOARD OF DIRECTORS OF
DISABILITY RIGHTS NEW MEXICO,
INC.; JAMES JACKSON, BERNADINE
CHAVEZ, JASON C. GORDON, NANCY
KOENIGSBERG, and TIM GARDNER, in
their personal, official, and conjugal
partnership capacities as members of the
Board of Directors of Disability Rights
New Mexico, Inc.,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, McKAY and MATHESON, Circuit Judges.
_________________________________
Hitoshi Ombe, appearing pro se, appeals from the final judgment entered
against him in three consolidated civil rights suits. In those cases, he asserted claims
for disability discrimination, age discrimination and other civil rights violations
against the state of New Mexico, its Division of Vocational Rehabilitation (DVR), its
Public Education Department (PED) and numerous state employees (collectively
“State Defendants”), as well as the non-profit Disability Rights of New Mexico, Inc.,
its board of directors, and several of its employees (collectively “DRNM
Defendants”).
Mr. Ombe also appeals the district court’s order imposing filing restrictions on
him and seeks leave to proceed in forma pauperis on appeal. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm the district court’s judgment and order and deny
Mr. Ombe leave to proceed in forma pauperis.
*
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.
2
BACKGROUND
Mr. Ombe is a mathematician and former university professor of Japanese
origin who was diagnosed with Asperger’s Syndrome, a form of autism, later in life.
He also reports that he suffers from severe depression because of difficulties he has
experienced as a result of his autism disorder.
One of these difficulties was Mr. Ombe’s years of underemployment as a
cashier at a gas station sometime after his university position ended. In an effort to
obtain a job better suited to his skills and interests, Mr. Ombe applied for services
offered by DVR, which is a division within the PED that seeks to increase the
independence of individuals with disabilities through employment. Mr. Ombe
became dissatisfied with DVR’s services, and asked DRNM to help him in dealing
with the state agency. Mr. Ombe also became dissatisfied with DRNM’s efforts on
his behalf. As a result, Mr. Ombe filed two actions against the State Defendants and
an additional action against the DRNM Defendants. The essence of Mr. Ombe’s
claims in each case was that these entities and their employees failed to provide him
with adequate assistance and did not properly accommodate his disabilities in
communicating with him, thereby violating his civil and constitutional rights and
impermissibly discriminating against him on account of his disabilities, race, national
origin, and age.
The district court consolidated the three cases and granted the DRNM
Defendants’ motion to dismiss the claims against them for failure to state a claim. It
also granted in part and denied in part the State Defendants’ motions to dismiss
3
Mr. Ombe’s claims for failure to state a claim and for lack of jurisdiction. The
district court subsequently denied Mr. Ombe’s motions to reconsider its decisions
granting these motions to dismiss, denied his motions to amend his complaint,
granted summary judgment to the State Defendants on the remaining claims, and
entered final judgment dismissing his cases with prejudice. It also denied
Mr. Ombe’s motion to proceed in forma pauperis on appeal.
In addition, after providing Mr. Ombe with notice and an opportunity to
object, the district court issued a post-judgment order imposing restrictions on his
district court filings in this matter. This order was issued at the request of the State
Defendants in response to Mr. Ombe’s excessive filings in this case, many of which
disparaged the Court and opposing counsel in derogatory and abusive terms.
DISCUSSION
A. Appellate Jurisdiction
The State and DRNM Defendants assert that our jurisdiction in this appeal is
limited by Mr. Ombe’s failure to identify all of the district court orders he challenges
in his notice of appeal. See Fed. R. App. P. 3(c)(1)(B) (notice of appeal must “designate
the judgment, order, or part thereof being appealed”); Williams v. Akers, 837 F.3d 1075,
1078 (10th Cir. 2016) (“Rule 3(c)(1)(B)’s designation requirement is
jurisdictional.”). They are mistaken.
Mr. Ombe’s notice of appeal states that he is appealing the district court’s final
judgment and its filing restrictions order. See R. Vol. I at 476. “[A] notice of appeal
which names the final judgment is sufficient to support review of all earlier orders
4
that merge in the final judgment.” McBride v. CITGO Petroleum Corp.,
281 F.3d 1099, 1104 (10th Cir. 2002). And as “a general rule . . . all earlier
interlocutory orders merge into final orders and judgments,” with the result that
“[h]aving appealed from the judgment, the appellant is free to attack any nonfinal
order or ruling leading up to it.” Id. (internal quotation marks omitted). As a result,
our jurisdiction in this appeal extends to any of the district court’s pre-judgment,
nonfinal rulings that Mr. Ombe opted to challenge on appeal, as well as the filing
restriction order he separately designated in his notice.
The State and DRNM Defendants do not contend any of the district court’s
pre-judgment rulings were final orders that fall outside of these rules.1 Instead, they
assume that Mr. Ombe’s notice of appeal from the district court’s judgment only
encompasses the orders the district court specifically referenced in its judgment,
which were its recent orders granting the State Defendants’ motion for summary
1
With respect to the DRNM Defendants and their motion to dismiss on
jurisdictional grounds, we note that the district court’s September 3, 2015 order
dismissing the claims asserted against them was not a final, appealable order because
the district court did not direct entry of final judgment regarding these claims at that
time. See Perington Wholesale, Inc. v. Burger King Corp., 631 F.2d 1369, 1370 n.2
(10th Cir. 1979) (“In multiparty actions such as this, unless the trial judge expressly
directs entry of a final judgment as to less than all the parties in accordance with the
requirements of Fed.R.Civ.P. 54(b), the order [dismissing claims against a single
defendant] does not become final until entry of judgment adjudicating all the claims,
rights and liabilities of all the parties.”); Trinity Broad. Corp. v. Eller, 827 F.2d 673, 675
(10th Cir. 1987) (per curiam) (adopting “the rule that a judgment in a consolidated action
that does not dispose of all claims shall not operate as a final, appealable judgment under
28 U.S.C. § 1291. To obtain review of one part of a consolidated action, appellant must
obtain certification under Fed.R.Civ.P. 54(b)”).
5
judgment and denying Mr. Ombe’s motions asking the court to reconsider its
previous dispositive decisions and to allow him to amend his complaint. The
Defendants’ assumption is incorrect for the reasons stated above.
B. Issues on Appeal
Because Mr. Ombe is appearing pro se, we liberally construe his filings.2
See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Even so, we have some difficulty discerning the issues Mr. Ombe is attempting to
raise on appeal. But it is clear Mr. Ombe argues that he was wronged by the district
court, the magistrate judge, and defense counsel because, he contends, they did not
understand his autism disorder and depression, did not appreciate how difficult it was
for him to prosecute his suits given these conditions, failed to accommodate his
disabilities in managing his case and deciding motions, and improperly focused on
what he describes as “lawyer’s nonsense,” Reply Br. at 15, instead of “basic
fairness,” Opening Br. at 5. By “lawyer’s nonsense,” Mr. Ombe apparently refers
generally to the district court’s and the defendants’ adherence to the applicable legal
rules, both procedural and substantive, in addressing his claims.
Construing his opening brief liberally, it also appears that Mr. Ombe seeks to
challenge several specific district court’s rulings, including the district court’s decision
to consolidate his three cases, its denial of his request for help in serving one of the
2
In addition to his opening and reply briefs, Mr. Ombe has filed various
motions to amend or supplement his briefing and to provide the court with
supplemental authorities. We grant these motions below, and have considered these
additional filings and attached materials as relevant in our review.
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individual State defendants, some aspects of its orders dismissing or granting
summary judgment against his claims, and its filing restrictions order. Throughout,
Mr. Ombe colors his complaints with disrespectful language directed at the district
court and magistrate judges and the other participants in the proceedings below, thus
repeating a pattern that is pervasive in the district court record.3
In his briefing and other supplementary materials, Mr. Ombe has provided us
with a great deal of information concerning his autism disorder and depression and how
both affect his cognitive functions, and we appreciate his efforts to inform the court on
these subjects. We also note that Mr. Ombe provided much of this information to the
district court as well in an effort to educate it on his conditions. But Mr. Ombe is
mistaken in believing that the district court was required to disregard the legal rules that
govern civil lawsuits in response to his cognitive and mental health issues or his pro se
status. See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 543 (1991) (“The
applicability of rules of law is not to be switched on and off according to individual
hardship.”); Garrett, 425 F.3d at 840 (“[T]his court has repeatedly insisted that pro se
parties follow the same rules of procedure that govern other litigants.” (internal
quotation marks and brackets omitted)). These rules are not mere technicalities or legal
nonsense, as Mr. Ombe contends, but rather serve to bring order, consistency, and
3
Whether borne of frustration or other motivations, such language has no
place in this or any court. See Garrett, 425 F.3d at 841 (stating that appellate
briefing that impugns the integrity of the district judge will not be tolerated and may
be stricken).
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predictability to legal proceedings. And while Mr. Ombe insists that the district court
was required to modify or ignore otherwise applicable procedural and substantive rules as
an accommodation to his cognitive and mental health issues, he cites no legal authority
that supports this proposition and we are aware of none.4 Nor was it “the proper function
of the district court to assume the role of advocate” for Mr. Ombe, as he apparently
assumes. See Garrett, 425 F.3d at 840 (internal quotation marks omitted). In short,
Mr. Ombe’s report that he “[s]imply . . . could not handle” the applicable legal rules as a
result of his autism and severe depression does not make the district court’s adherence to
them “completely wrong or unfair” as Mr. Ombe claims. Opening Br. at 23 & n.60; cf.
Sieverding v. Colo. Bar Ass’n, 469 F.3d 1340, 1343 (10th Cir. 2006) (“[T]he right of
access to the courts is neither absolute nor unconditional.” (internal quotation marks
omitted)).
Mr. Ombe’s attempt to challenge the district court’s filing restriction order and
some of its other specific decisions also falls short. In presenting these issues for our
review, Mr. Ombe was required to provide reasoned argument in his opening brief
4
Mr. Ombe briefly refers to the American Disabilities Act, Section 504 of the
Rehabilitation Act, the First and Fourteenth Amendments and various civil rights
statutes in his general complaints regarding the district court proceedings, but does
not identify any authority holding that these laws required the district court or
defense counsel to act differently than they did. Mr. Ombe’s assertion that
34 C.F.R. § 361.18(c)(2)(ii) is relevant here is incorrect for several reasons, including that
it applies to state agencies that provide vocational rehabilitation services and thus has no
application in a judicial proceeding. See id. § 361.18. Nor is there a “Federal Court
Policy on Disability,” as Mr. Ombe reports, see, e.g., Opening Br. at 6, or any other court
policy that required the district court to modify or abandon otherwise applicable legal
rules in response to his conditions.
8
describing how he thinks the district court erred in each challenged order or decision,
with citations to the legal authorities and parts of the record on which he relies. See Fed.
R. App. P. 28(a)(8)(A); Habecker v. Town of Estes Park, 518 F.3d 1217, 1223 n.6
(10th Cir. 2008) (refusing to consider argument where appellant failed to “advance
reasoned argument as to the grounds for the appeal” (internal quotation marks and
brackets omitted)). The purpose of this rule, which applies to all appellants, is to ensure
that an appellant provides us with the information necessary to decide the appeal, because
it is not our role to serve as the appellant’s attorney in constructing arguments,
researching the law, or searching the record. See Garrett, 425 F.3d at 840.
Mr. Ombe’s arguments regarding the specific district court orders and decisions he
apparently seeks to challenge do not comply with this rule because they are conclusory
and not supported by relevant legal authority. See, e.g., Nixon v. City & Cty. of Denver,
784 F.3d 1364, 1370 (10th Cir. 2015) (“A brief must contain an argument consisting of
more than a generalized assertion of error, with citations to supporting authority.”
(internal quotation marks and brackets omitted)); Garrett, 425 F.3d at 841 (holding
issues are inadequately briefed if they are supported by “conclusory allegations with
no citations to the record or any legal authority”). In other words, Mr. Ombe’s
arguments regarding these decisions are inadequately presented for purposes of appellate
review. When this occurs, we deem the inadequately briefed arguments waived and do
9
not review them on appeal. 5 See, e.g., Nixon, 784 F.3d at 1368 (arguments “not
adequately developed in a party’s [opening] brief” are waived); Garrett, 425 F.3d at 841
(same). Accordingly, we do not consider Mr. Ombe’s challenges to any specific district
court order or decision in this appeal.
CONCLUSION
For the reasons stated above, we AFFIRM the district court’s final judgment
and order imposing filing restrictions.
With respect to the pending motions, we DENY the DRNM Defendants’
motion to dismiss the appeal against them for lack of jurisdiction because, as
discussed above, the interlocutory order dismissing the claims against them merged
into the final judgment Mr. Ombe properly appealed. We also DENY Mr. Ombe’s
motion to withdraw his motion for an extension of time to file his reply brief, filed
June 11, 2018, as moot, but GRANT his motions seeking leave to file amendments or
supplements to his briefs and to file supplemental authority, filed on July 11, July 19,
August 29, October 1, and November 1, 2018, respectively. Finally, we DENY
Mr. Ombe’s motion to proceed in forma pauperis on appeal because, for the reasons
discussed above, his briefs do not demonstrate “the existence of a reasoned,
5
In addition, we do not consider any issues Mr. Ombe raised in his reply brief
or supplemental filings that were not included in his opening brief, because the
appellees had no opportunity to respond to them. See Stump v. Gates, 211 F.3d 527,
533 (10th Cir. 2000). Except in very limited circumstances, we also do not consider
issues that were not raised before the district court, see Richison v. Ernest Group,
Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011), such as Mr. Ombe’s contention for the
first time in this court that he was not able to respond to the State Defendants’
summary judgment motion because it was not properly served on him.
10
nonfrivolous argument on the law and facts in support of the issues raised on appeal.”
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
Entered for the Court
Per Curiam
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