Hall v. City & County of Denver ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 19, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ZEBEDEE E. HA LL,
Plaintiff-Appellant,
v. No. 05-1419
(D.C. No. 03-cv-140-M SK-CB S)
CITY AND COU NTY OF DENVER; (D . Colo.)
TH E D EN V ER SWA T TEA M , known
and unknown members of; SGT.,
B ERDA H L, #86059; TEC H.
CA NINO , #91041; TECH. GR OTH E,
#95015; TECH. GILW ORTH, #89029;
TEC H. DELM EN IC O, #89029; TECH.
FO X , #87026; TEC H B RO D EN,
#90026; TECH. M OEN, #91027;
TEC H. LA U RITA , #83011; TECH.
M CK IHHEN , #86042; TEC H. TITU S,
#93013; TECH. M EYER, #89041;
TECH. BRENNA N, #95035; OFC.
N EBEL, #97015; SG T. O RG A N,
#75033,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Before TYM KOV IC H, M cKA Y, and BALDOCK , Circuit Judges.
Plaintiff Zebedee E. Hall, appearing pro se, appeals from the district court’s
oral decision, entered after a bench trial, denying him relief under 42 U.S.C.
§ 1983. On appeal, Hall argues that the district court erred (1) in denying his
motion for appointment of counsel; (2) by misstating the facts in its oral decision;
(3) by acting as surrogate counsel for defendants when ruling on his motion for a
new trial; and (4) in failing to grant his motion for a new trial. 1 Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
In his § 1983 complaint, Hall alleged that defendants, the City and County
of Denver and several law enforcement officers, violated the Fourth Amendment
and 18 U.S.C. § 3109 when the officers executed a search warrant at his home
without knocking and announcing their presence before forcibly entering. After
denying the parties’ motions for summary judgment, the district court held a
1
In his brief on appeal, Hall mentions three additional arguments: (1) the
district court erred in dismissing the individual-capacity claim against the
prosecutor in his criminal case, Kathleen M . Tafoya; (2) the district court erred in
denying his motion for summary judgment; and (3) the district court improperly
allowed defense counsel to lead a child witness during cross examination.
Because these issues are merely mentioned, but are not argued, we deem them to
be waived. See Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1558 n.1
(10th Cir. 1992), modified on other grounds on reh’g, 995 F.2d 992 (10th Cir.
1993); Abercrom bie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990).
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two-day bench trial, with Hall appearing through video teleconferencing from
prison. At the close of trial, the district court decided in favor of defendants,
orally delivering findings of fact and conclusions of law. The court decided that
Hall did not meet his burden of “establishing that Defendants did not knock and
announce prior to entering his home, and that it was more likely than not that
such knocking and announcing took place.” See Supp. R., Vol. 1, Tab 149 at 2
(O pinion & Order D enying M otion for N ew Trial).
After the district court entered judgment, and after Hall filed his notice of
appeal, he also filed a timely motion for a new trial. 2 See Fed. R. Civ. P. 59(a).
In that motion, he argued that (1) the district court should have appointed counsel
to assist him; (2) he was prevented from subpoenaing two witnesses; (3) newly
discovered evidence indicated defendants’ evidence was perjured; (4) prison
officials delayed his mail, thereby preventing him from issuing trial subpoenas;
(5) the district court misinterpreted the evidence; and (6) defects in the video
connection resulted in the district court being unable to correctly hear his
testimony.
2
In addition, Hall filed a motion for leave to proceed on appeal in forma
pauperis (IFP). The district court denied H all’s IFP motion as deficient, because
it lacked a certified copy of his prisoner trust fund statement for the six-month
period immediately preceding the filing of the motion. See 28 U.S.C.
§ 1915(a)(2).
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This court abated this appeal pending the district court’s disposition of the
motion for new trial. See Stone v. INS, 514 U.S. 386, 402-03 (1995) (holding
timely Rule 59 motion divests appellate court of jurisdiction). The district court
denied the motion, finding no manifest injustice because (1) Hall was able to
adequately represent himself; (2) Hall never alerted the court during trial that he
had been unable to subpoena witnesses and, in any event, Hall’s case was not
prejudiced by the witnesses’ absence from trial; (3) even with Hall’s newly
discovered evidence, a copy of a supplemental report by the Aurora Police
Department, 3 the court would have reached the same decision; and (4) the court
accurately stated the evidence, and, even if the court misconstrued the evidence,
Hall’s daughter’s testimony established that defendants knocked and announced
before entering the house. Hall amended his notice of appeal, and this court
ordered additional briefing on the issues concerning denial of a new trial.
II.
A.
On appeal, Hall first argues that the district court should have granted his
motion for appointment of counsel. W e conclude the district court did not abuse
its discretion in denying the motion. See Rucks v. Boergermann, 57 F.3d 978, 979
3
W e disagree that this was newly discovered evidence. Defendants provided
a copy of this report at the time they filed their motion for summary judgment.
Compare Dist. Ct. Original File, Vol. 1, Doc. 87, Ex. C at 11 (M otion for
Summary Judgment) with R., Vol. I, Tab 138, Ex. 22 (M otion for N ew Trial).
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(10th Cir. 1995) (reviewing denial of motion for appointment of counsel for abuse
of discretion). The district court fully considered relevant factors when denying
appointment of counsel. See R., Vol. I, Doc. 36 at 2-3 (citing Rucks and other
cases and listing relevant factors of complexity of case, nature of factual issues,
litigant’s ability to present his claims, litigant’s efforts to obtain his own counsel,
and merits of claims). Hall did not meet his burden of showing that counsel
should be appointed. See Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115
(10th Cir. 2004). Further, nothing convinces us, as Hall suggests, that the district
court should have reconsidered its decision later in the proceedings.
B.
Next, Hall argues that the district court misstated the facts in its bench
decision. In order to review the district court’s oral decision and the evidence
presented at trial, a trial transcript is essential. Hall had the burden to provide the
necessary transcript. See Fed. R. App. P. 10(b)(2) (“If the appellant intends to
urge on appeal that a finding or conclusion is unsupported by the evidence or is
contrary to the evidence, the appellant must include in the record a transcript of
all evidence relevant to that finding or conclusion.”); 10th Cir. R. 10.1(A)(1)
(“The appellant must provide all portions of the transcript necessary to give the
court a complete and accurate record of the proceedings related to the issues on
appeal.”). But he failed to do so. Although w e liberally construe his pro se
filings, Hall’s pro se status does not exempt him from following these procedural
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rules or from providing a transcript. See Murray v. City of Tahlequah, 312 F.3d
1196, 1199 n.3 (10th Cir. 2002); Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994); 10th Cir. R. 11.2(A) (stating that in pro se cases, district court clerk sends
only transcripts that have been filed for appeal).
Contending that he was not aware that he was required to provide the
record on appeal, Hall requests for the first time in his reply brief that this court
sua sponte obtain the trial transcript. Indigent appellants may obtain a free trial
transcript if the requirements of 28 U.S.C. § 753(f) are met. Section 753(f)
provides that “[f]ees for transcripts furnished in . . . proceedings to persons
permitted to appeal in forma pauperis shall . . . be paid by the United States if the
trial judge or a circuit judge certifies that the appeal is not frivolous (but presents
a substantial question).” W e therefore must consider whether Hall should be
allowed to proceed on appeal IFP and w hether his appeal presents a substantial
question.
Although the district court denied leave to proceed IFP on appeal on the
technical ground that Hall failed to provide a certified copy of his prisoner trust
fund account statement, his IFP motion before this court does not suffer from the
same defect. Thus, we grant leave to proceed IFP on appeal.
W e recognize that it is difficult for courts and litigants to decide whether
a substantial question is presented unless the complete record is available. Lee v.
Habib, 424 F.2d 891, 904-05 (D.C. Cir. 1970); Jaffe v. United States, 246 F.2d
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760, 762 (2d Cir. 1957). Nonetheless, we consider the district court file and
Hall’s appellate briefs when determining whether he presented a substantial
question. See Rhodes v. C orps of Eng’rs of United States Army, 589 F.2d 358,
359-60 (8th Cir. 1978) (per curiam).
Hall states in his appellate brief that the district court orally found that he
heard a noise before defendants entered his home and that he never disputed that
defendants w aited twelve to eighteen seconds before entering his home. Hall
contends these findings misstated the facts because he, his w ife, and his
five-year-old daughter all testified that defendants never knocked or announced
their presence before forcibly entering the home. Thus, he believes that because
defendants did not knock, there was no waiting period before they entered. Also,
Hall denies ever stating that he heard a noise before defendants entered the home.
These arguments, when considered in light of the district court’s thorough
order denying Hall’s motion for new trial, do not identify a substantial question
deserving of appellate review. Nor are the documents in the district court’s file,
including the summary judgment pleadings, sufficient to convince us that Hall’s
appeal presents a substantial question.
Because Hall fails to present a substantial question on appeal, he does not
qualify for production of a transcript at government expense under § 753(f).
W e therefore deny his request in his reply brief that we obtain the transcript
sua sponte. W ithout a transcript of the evidence presented or the district court’s
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oral decision, we must affirm the district court’s bench decision. See Scott v.
Hern, 216 F.3d 897, 912 (10th Cir. 2000) (requiring affirmance where record
is insufficient for review ); M cGinnis v. Gustafson, 978 F.2d 1199, 1200-01
(10th Cir. 1992) (requiring affirmance where district court’s ruling from bench
was not transcribed).
C.
Third, Hall argues that the district court improperly acted as surrogate
counsel for defendants when ruling upon his motion for a new trial, because
defendants never responded to the motion. In light of defendants’ failure to
respond, he believes the district court should have granted a new trial.
A response to a motion is required only when the Federal Rules of Civil
Procedure or the local rules require that affidavits or other papers be filed.
5 Charles Alan W right & Arthur R. M iller, Federal Practice & Procedure § 1190
at 48 (3d ed. 2004). No federal or local rules require a response to a Rule 59
motion. Thus, the district court was free to deny the motion without a response
from defendants. And the district court did so, deeming Hall’s contentions
unrebutted, yet determining they did not warrant the relief Hall requested.
Supp. R., Vol. I, Tab 149 at 1 n.1. The denial of the motion does not show
that the district court acted improperly in defendants’ favor or as their surrogate
counsel.
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D.
In his final argument, Hall argues that the district court should have granted
his motion for a new trial. This argument again concerns the district court’s
alleged role as surrogate counsel for defendants, an argument we have already
rejected. W e therefore conclude the district court did not abuse its discretion in
denying the motion for new trial. See Anaeme v. Diagnostek, Inc., 164 F.3d 1275,
1284 (10th Cir. 1999).
III.
The judgment of the district court is AFFIRM ED. Hall’s motion for leave
to proceed on appeal without prepayment of costs or fees is GRANTED.
W e remind him that he must continue making partial payments until the entire
filing fee has been paid.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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