Tilley v. Choate , 502 F. App'x 760 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 20, 2012
Elisabeth A. Shumaker
Clerk of Court
PAUL HOWARD TILLEY,
Plaintiff-Appellant,
v. No. 12-7016
(D.C. No. 6:10-CV-00429-FHS)
JACK CHOATE, Sheriff; DERRELL (E.D. Okla.)
SUMMERS, Undersheriff; OKFUSKEE
COUNTY SHERIFF'S DEPARTMENT;
CREOKS MENTAL HEALTH
SERVICES; WANDA MANOS;
NORTHVIEW APARTMENTS;
TRAVELENE FISH; THOMAS DODDS,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.
Paul Howard Tilley, proceeding pro se, appeals the district court’s dismissal of
his civil rights and state-law tort claims for failure to state a claim under 28 U.S.C.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
§ 1915(e)(2)(B)(ii), and also appeals the district court’s subsequent dismissal of the
action as a sanction for discovery abuse under Fed. R. Civ. P. 37 (b)(2)(A)(v).
Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Filing pro se, Tilley initiated this action in Oklahoma in November 2010. He
was granted leave to proceed in forma pauperis and permitted to amend his
complaint after the district court determined that his complaint failed to establish a
basis for federal jurisdiction. Tilley subsequently filed an amended complaint and a
second amended complaint. As best we can construe his initial and amended
pleadings, Tilley’s civil rights action derives from an alleged altercation that
occurred when he went to the Okfuskee County Sheriff’s Department in Oklahoma to
file a complaint concerning the inadequate investigation into the death of a friend.
As we understand the nature of the complaint, during the encounter
Undersheriff Derrell Summers became upset with Tilley and beat his forehead
against Tilley’s cap, attempting to provoke a fight. Tilley was thereafter physically
assaulted and placed in handcuffs by Summers and Sheriff Jack Choate. Meanwhile,
he called out to others at the sheriff’s department to contact his apartment manager,
Travelene Fish, and advise her of the situation. He was taken to Creoks Mental
Health Services (Creoks) where he was briefly evaluated by Wanda Manos and
diagnosed with schizophrenia and paranoia. Tilley refused medical treatment and
was released from custody.
-2-
In his second amended complaint, Tilley asserted a claim of assault and
battery, against Summers, and claims of use of excessive force, false arrest, and false
imprisonment against both Choate and Summers. He also asserted claims of
defamation of character, intentional infliction of emotional distress, and conspiracy
against Choate, Summers, Manos, and Fish, whom he claimed conspired to have him
diagnosed with a mental health condition. Additionally, he alleged that Thomas
Dodds, whom Tilley had hired to prepare his first amended complaint, conspired with
his co-defendants to draft the complaint so poorly that the cause of action would be
dismissed. And he alleged that defendants Okfuskee County Sheriff’s Department,
Creoks, and Northview Apartments should be held accountable for the actions of
their employees.
In February 2011, pursuant to § 1915(e)(2)(B)(ii), the district court dismissed
Tilley’s claims of defamation, intentional infliction of emotional distress, and
conspiracy for failure to state a claim upon which relief can be granted, thereby
dismissing defendants Manos, Fish, Dodds, Creoks, Okfuskee County Sheriff’s
Department, and Northview Apartments. But it found that Tilley’s allegations of
assault and battery, excessive use of force, false arrest, and false imprisonment
against Choate and Summers were sufficient. Tilley attempted to appeal the district
court’s partial dismissal of his claims to this Court, but we dismissed the appeal in
May 2011 for lack of appellate jurisdiction.
-3-
The litigation proceeded against Choate and Summers but was thwarted by
discovery issues. Tilley responded to defendants’ discovery requests, but certain
responses were allegedly deficient. Among those deficiencies, Tilley refused to sign
releases for medical records unless ordered to do so by the district court. And he
indicated in his responses that there was an alleged recording of the incident but did
not produce any such recording. After defendants’ efforts to obtain revised and
supplemented responses from Tilley failed, defendants sought the district court’s
intervention in November 2011 by filing a motion to compel discovery. In a minute
order, the district court granted defendants’ motion to compel, advising Tilley that
failure to comply with the court’s order could result in sanctions, including the
dismissal of the case. Tilley, however, did not comply.
On defendants’ motion to dismiss Tilley’s remaining claims for failure to
comply with the district court’s discovery order, and after a hearing on the matter, the
district court dismissed the action in February 2012.
II. Discussion
Tilley appears to raise two issues on appeal: 1) Choate and Summers are not
entitled to immunity for claims of assault and battery, use of excessive force, false
arrest, and false imprisonment; and 2) defendants Okfuskee County Sheriff’s
-4-
Department, Creoks, Manos, Fish, Dodds, and Northview Apartments should be
“reinstated.” Aplt. Opening Br. at 3.1
As to the first issue, in his opening brief to this court, Tilley argues the merits
of his claims against defendants Choate and Summers, providing factual allegations
in support of his claims and some citation to case law. But nowhere in his brief does
he address the fundamental issue leading to the dismissal of these claims: the failure
to comply with the district court’s discovery order and the court’s resulting sanction
of dismissal. Although we are mindful that because Tilley is proceeding pro se we
must view his pleadings liberally, we will not serve as his advocate in constructing
arguments on his behalf or in searching the record. Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Defendants contend that Tilley has waived all issues on appeal due to
inadequate briefing. We agree. Under Fed. R. Civ. P. 37(b)(2)(A)(v), a district court
may issue an order dismissing the action if a party fails to obey an order to provide or
permit discovery. “Determination of the correct sanction for a discovery violation is
a fact-specific inquiry that the district court is best qualified to make,” and, therefore,
we review the district court’s decision to dismiss the action for abuse of discretion.
1
Based on our review of the record, defendants-appellees Okfuskee County
Sheriff’s Department, Creoks, Manos, Fish, Dodds, and Northview Apartments were
not served a summons in the district court action, given the district court’s order
dismissing them and directing service only upon defendants-appellees Choate and
Summers. On appeal, only Choate and Summers have entered their appearances and
filed a response brief.
-5-
Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). Accordingly, the
appropriate issue on appeal is whether the district court’s choice of dismissal as a
sanction was a permissible exercise of its discretion. But Tilley’s brief wholly fails
to address this issue and therefore he has waived it. United States v. Almaraz,
306 F.3d 1031, 1041 (10th Cir. 2002) (“[A]rguments not briefed on appeal are
waived.”).
We note, however, that dismissal of an action for discovery violations is
permissible and has been affirmed where, as here, a party withholds evidence. See
Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172, 1174-75
(10th Cir. 1995) (withholding of medical information in action for personal injuries
was sufficient to justify sanction of dismissal); see also Ehrenhaus, 965 F.2d
at 921-22 (sanction of dismissal upheld where party disobeyed court order to appear
at scheduled deposition).
As to his argument concerning the merits of his claims against Choate and
Summers, Tilley’s brief is inadequate to raise any issue for appellate review. He has
not claimed any error by the district court or provided any argument. See Utahns for
Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002)
(“[I]ssues will be deemed waived if they are not adequately briefed.”), modified on
rehr’g, 319 F.3d 1207 (10th Cir. 2003); Garrett, 425 F.3d at 841 (noting that
“conclusory allegations with no citations to the record or any legal authority for
support” will result in a waiver on appeal); see also Fed. R. App. P. 28.
-6-
Turning to the second issue on appeal, to the extent that Tilley appeals the
district court’s order dismissing his claims of defamation, intentional infliction of
emotional distress, and conspiracy, as with the first issue, Tilley does not address any
error by the district court in dismissing the claims under § 1915(e)(2)(B)(ii). Instead,
in his argument to “reinstate” defendants Okfuskee County Sheriff’s Department,
Creoks, and Northview Apartments, he claims, with some citation to case law, that
they are municipalities responsible for the actions of their employees and not entitled
to absolute immunity. In support of his argument to reinstate Choate, Summers,
Manos, Fish, and Dodds, he asserts factual allegations in support of both of his
conspiracy claims against these defendants.
But again, he does not explain how or why the district court erred in
dismissing the claims, or support any argument with citation to the record or case
law. We conclude Tilley has waived any argument on appeal. See Utahns for Better
Transp., 305 F.3d at 1175; Garrett, 425 F.3d at 841.
III. Conclusion
The judgment of the district court is AFFIRMED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
-7-