Wickham v. Gibson ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 28, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
PAUL LEROY WICKHAM,
Plaintiff - Appellant,
v. No. 18-5112
(D.C. No. 4:18-CV-00449-JED-FHM)
CARL GIBSON, Judge; STATE OF (N.D. Okla.)
OKLAHOMA; NOWATA COUNTY;
TERRY DEAN WICKHAM; KENNY
FREEMAN; BEVERLY ELLEN
JOHNSON; TERRY ALLAN WICKHAN;
THAD AUSTIN WICKHAM; ANTHONY
TOWERS; R POPP; CURTIS BARNES;
BUD FROST; DOUG SONNENBERG;
LINDA WICKHAM,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ 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
ordered submitted without oral argument. This order and judgment isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th
Cir. R. 32.1.
Paul Wickham, proceeding pro se, appeals the district court’s order dismissing
his complaint.1 For the reasons explained below, we affirm.
Wickham’s complaint names 14 defendants, including a state-court judge; the
State of Oklahoma; five of Wickham’s family members (the Wickham defendants);
Nowata County; County Sheriff Kenny Freeman; Deputies Anthony Towers and R.
Popp; and Bud Frost, Doug Sonnenberg, and Curtis Barnes. Wickham alleges
(1) “state[-]law claims of fraud or extortion, libel, slander, defamation, loss of
affection, and emotional anguish,” R. 80; (2) civil-rights claims under 28 U.S.C.
§ 1983; and (3) claims arising under the Racketeer Influenced and Corrupt
Organizations Act (RICO) of 1970, 18 U.S.C. §§ 1961–68.
The district court granted the defendants’ motions to dismiss. It first ruled that
the state-court judge had “absolute immunity from civil liability for judicial acts.”
R. 81; see also Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000)
(“Judges are absolutely immune from civil liability for judicial acts, unless
committed in the clear absence of all jurisdiction.” (quoting Henriksen v. Bentley,
644 F.2d 852, 855 (10th Cir. 1981))). Thus, any claims against the judge necessarily
failed.
Next, the district court concluded that Wickham failed to plead “any factual
allegations that support any claims against any of the defendants.” R. 81. Although
Wickham listed the State, Nowata County, Barnes, Frost, and Sonnenberg as
1
We liberally construe pro se pleadings, but we won’t act as Wickham’s
advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
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defendants, he failed to make any factual allegations against them—indeed, their
names appear only in the case caption and nowhere else in the complaint. Thus, the
district court concluded that Wickham failed to state a claim against those
defendants.2 Regarding any possible § 1983 claim against Popp, Towers, or Freeman,
the district court stated that Wickham failed to “identif[y] any constitutional right
that was violated.” Id. at 82. Nor did Wickham “assert[] facts plausibly indicating
that any defendant violated his rights.” Id. (emphasis added). The district court found
that the same was true of Wickham’s RICO allegations: he failed to state a plausible
claim.
Additionally, the district court concluded that it lacked subject-matter
jurisdiction over the claims against the Wickham defendants. Diversity jurisdiction
didn’t exist because Wickham failed to “identif[y] the citizenship of the individual
defendants or otherwise provide[] a single fact to support the existence of complete
diversity.” Id. at 80; see also 28 U.S.C. § 1332 (creating diversity jurisdiction over
actions between citizens of different states with amount in controversy exceeding
$75,000). Further, according to the Wickham defendants’ motion to dismiss,
Wickham and the Wickham defendants are all citizens of Oklahoma. And the district
court noted that Wickham didn’t present any facts supporting federal-question
jurisdiction: he didn’t plead any facts suggesting that the Wickham defendants were
2
The district court also noted that the State was immune from suit. See U.S.
Const. amend. XI; Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)
(“The ultimate guarantee of the Eleventh Amendment is that nonconsenting [s]tates
may not be sued by private individuals in federal court.”).
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state actors subject to § 1983, and his “unsupported references to RICO d[id] not
state any colorable claim.” R. 81; see also § 1331 (creating federal-question
jurisdiction over “civil actions arising under the Constitution, laws, or treaties of the
United States”). Accordingly, the district court dismissed Wickham’s complaint
without prejudice. Wickham now appeals.
We review a dismissal for failure to state a claim de novo. Thomas v. Kaven,
765 F.3d 1183, 1190 (10th Cir. 2014). We likewise review de novo a dismissal for
lack of subject-matter jurisdiction. See Holt v. United States, 46 F.3d 1000, 1003
(10th Cir. 1995). But in his briefing, Wickham completely fails to challenge any of
the district court’s rulings. “The first task of an appellant is to explain to us why the
district court’s decision was wrong. Recitation of a tale of apparent injustice may
assist in that task, but it cannot substitute for legal argument.” Nixon v. City & Cty. of
Denver, 784 F.3d 1364, 1366 (10th Cir. 2015). Wickham’s opening and reply briefs
each contain a single page of apparent argument, preceded by several pages of tables
of contents and authorities that don’t correspond in any way to his argument and
appear to be taken from briefs in other, unrelated cases. And in those two pages of
apparent argument, Wickham recites “a tale of apparent injustice” rather than
explaining “why the district court’s decision was wrong.” Id. He also fails to cite any
legal authority, the record, or any part of his complaint. Cf. Fed. R. App. P.
28(a)(8)(A) (noting that appellant’s brief “must contain . . . appellant’s contentions
and the reasons for them, with citations to the authorities and parts of the record on
which the appellant relies”).
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Accordingly, Wickham waived any challenge to the district court’s rulings.
See Nixon, 784 F.3d at 1368 (“It is unfortunately commonplace that an issue on
appeal is waived because it is not adequately developed in a party’s brief.”). We
therefore affirm. See id. at 1369 (affirming dismissal of plaintiff’s claim because
“opening brief contain[ed] nary a word to challenge the basis of the dismissal”).
Entered for the Court
Nancy L. Moritz
Circuit Judge
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