Kenney v. Trinity Industries, Inc. ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
August 26, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ANTHONY C. KENNEY,
Plaintiff - Appellant,
v. No. 07-5123
(D.C. No. 06-CV-585-GKF-FHM)
TRINITY INDUSTRIES, INC.; (N.D. Okla.)
DON MAGRUDER,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.
Plaintiff-Appellant Anthony C. Kenney, appearing pro se, challenges the
district court’s dismissal of his case for failure to state a claim for which relief
can be granted. He also seeks leave to proceed in forma pauperis (IFP) on this
appeal. We have jurisdiction under 28 U.S.C. § 1291. Reviewing Mr. Kenney’s
*
This Order and Judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.
R. 34.1(G). The case is therefore ordered submitted without oral argument.
filings liberally, 1 we hold that the district court properly dismissed his claim and
AFFIRM. We also DENY his motion to proceed IFP.
I. BACKGROUND
On October 24, 2006, Mr. Kenney filed what he titled a “Draft Complaint”
in the United States District Court for the Northern District of Oklahoma. This
one page document identified the defendants as Trinity Industries, Inc., and Don
Magruder. On April 23, 2007, the defendants filed a motion to dismiss the
complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The
defendants argued that Mr. Kenney did not provide any facts, did not indicate the
nature of the relationship between Mr. Kenney and the defendants—if one existed
at all—and did not give any details about the claims that he was asserting against
the defendants. The district court granted the defendants’ motion, reasoning that
Mr. Kenney could not prevail on the facts he alleged and that providing him the
opportunity to amend would be futile. Mr. Kenney then filed a notice of appeal.
II. DISCUSSION
We review a dismissal for failure to state a claim under Rule 12(b)(6) de
novo. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007). In so
doing, we accept well-pleaded allegations as true and construe those allegations
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Because Mr. Kenney is proceeding pro se, we review his pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v.
U. S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
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in the light most favorable to the plaintiff. Id. “We look for plausibility in the
complaint.” Id. (quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1970
(2007)).
We can discern no well-pleaded allegations in Mr. Kenney’s complaint. He
strings together a number of legal phrases, but the resulting conglomeration offers
no insight into the claims that Mr. Kenney wishes to assert. Generously reading
Mr. Kenney’s complaint, he may have been attempting to state an employment-
related claim. Part of his complaint states, “Plaintiff appeals class action filing
same since 1988 frauding [sic] against welding test used for to keep plaintiff out
of a job since against employement [sic] rights; . . . .” R., Vol. I, Doc. 1, at 1
(Draft Complaint, filed Oct. 24, 2006). This does not qualify as a well-pleaded
allegation, and this statement probably is the one in his complaint that most
closely approximates such an allegation. Accordingly, the district court properly
dismissed his complaint for failure to state a claim for which relief can be
granted.
Mr. Kenney also moves for leave to proceed IFP on this appeal. To
succeed on this motion, Mr. Kenney “must show a financial inability to pay the
required filing fees and the existence of a reasoned, 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). The two issues Mr. Kenney states on appeal
are “Disembard [sic] from employment titile [sic] VII of 1964 Civil rights [sic]
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Act” and “Haveing [sic] to refile some Changes.” Aplt. Br. at 3. Because Mr.
Kenney has failed to raise a reasoned, nonfrivolous argument, his IFP request is
denied.
Accordingly, the district court’s dismissal order is AFFIRMED, and Mr.
Kenney’s motion to proceed IFP is DENIED.
ENTERED FOR THE COURT,
Jerome A. Holmes
Circuit Judge
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