Laban Pond v. Randall Haas , 674 F. App'x 466 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0698n.06
No. 16-1507
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Dec 30, 2016
DEBORAH S. HUNT, Clerk
LABAN POND, )
)
Plaintiff-Appellant )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
RANDALL HAAS and DANIEL H. HEYNS, )
DISTRICT OF MICHIGAN
)
Defendants-Appellees. )
)
BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Laban Pond appeals the district court’s
decision to dismiss his suit against two Michigan prison officials for alleged Eighth Amendment
violations stemming from their response to an injury he received while in custody. Pond also
challenges the district court’s refusal to grant him leave to file a post-judgment amended
complaint. Because Pond’s complaint fails to state a plausible Eighth Amendment violation, and
because the district court did not abuse its discretion in denying Pond’s motion for leave to file a
post-judgment amended complaint, we affirm.
I.
A.
On November 18, 2013, while incarcerated at the Jackson County jail, Pond alleges that
he fell and injured his arm. He claims that he was diagnosed with a broken arm that day and
No. 16-1507
Pond v. Haas
then transferred to Michigan’s Parnall Correctional Facility (Parnall) “within one or two days.”
DE 1 ¶ 10, Page ID 4. Pond asserts that from the time he arrived at Parnall, he “constantly
complained” of the pain in his arm, and received medical care only “after making numerous
complaints to guards and officers[.]” Id. ¶ 15.
Pond alleges that a Parnall physician again diagnosed him with a broken arm during a
November 20 exam. The physician allegedly told Pond that he needed immediate surgery but
stated that he lacked “authority to conduct proper diagnostic tests to discover the severity of
[Pond’s] injuries.” Id. ¶ 11. Pond then claims that his surgery was “deliberately not scheduled”
after the November 20 examination.1 Id. ¶ 12. Pond alleges that he was examined for a third
time on November 27 and again told by “a medical professional” that he needed surgery. Id.
¶ 13. Pond states that the surgery occurred on December 16, 2013.
B.
On November 17, 2015, Pond filed a complaint in the Eastern District of Michigan
claiming that the state’s response to his injury violated his Eighth Amendment rights, entitling
him to both damages under 42 U.S.C. § 1983 and declaratory relief. He named Randall Haas,
both individually and in his official capacity as Parnall’s warden, and Daniel Heyns, in his
official capacity as director of the Michigan Department of Corrections, as defendants.2
Pond alleges that Haas was responsible for hiring, training, retaining, and supervising the
Parnall employees who managed the inmate population, as well as for the policies and
procedures regarding the “administration of medical care to inmates” at Parnall. Id. ¶¶ 7–8, Page
ID 3. He claims that Haas had a policy and practice of delaying or denying an inmate’s access to
necessary pre-surgery diagnostic tests “by virtue of [an] unnecessary and draconian approval
1
Pond does not identify who at Parnall was responsible for refusing to schedule his surgery.
2
Because Pond does not challenge the dismissal of the claims against Heyns, we do not address them here.
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process,” and that this constituted a deliberate indifference to his serious medical needs in
violation of the Eighth Amendment.3 Id. ¶¶ 16–17, 28, Page ID 4, 6.
Next, with respect to his specific injury, Pond alleges that although Haas approved his
surgery after his third exam on November 27, he “did not schedule [the surgery] until December
16, 2013.” Id. ¶ 14, Page ID 4. He concludes that these acts and omissions by Haas constituted
a deliberate indifference to an immediate and serious medical need in violation of his Eighth
Amendment rights.
On January 14, 2016, Haas filed a motion to dismiss Pond’s complaint under Fed. R. Civ.
P. 12(b)(1), (2), and (6). Haas argued that (1) the Eleventh Amendment barred the § 1983
damages suit against him in his official capacity; (2) he was entitled to qualified immunity
because Pond failed to plead sufficient facts showing that he violated a clearly established right;
(3) Pond failed to plead sufficient allegations showing prison officials acted with deliberate
indifference to his medical needs; and (4) Pond failed to plead sufficient allegations showing
Haas was personally involved in the alleged deprivation.
Pond did not file a response within the twenty-one-day window required by the Eastern
District of Michigan’s local rules. See E.D. Mich. LR 7.1(e)(1)(B). Pond’s attorney later
disclosed that he failed to file a response because he “inadvertently sent” the email notice of the
motion to his associate attorney but “neglected to send it to [his] assistant for calendaring as had
been [his] practice.” DE 20-1, Page ID 97.
On February 9, 2016, the district court issued an opinion and order granting the motion to
dismiss with prejudice. Although the opinion noted Pond’s failure to respond, the district court
stated that it had “independently reviewed defendants’ motion and cited legal authorities[.]” DE
18, Page ID 73. The court dismissed the § 1983 claim against Haas in his official capacity as
3
Pond does not identify a more-specific policy or procedure implemented by Haas. (See Compl. ¶¶ 16–28.)
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barred by the Eleventh Amendment. It also dismissed the claims against Haas in his individual
capacity for failing to state a claim because Pond had failed to allege that: (1) Haas was aware of
his medical need; or (2) Haas had any “direct, personal involvement in the alleged delay of
medical care in this specific case.” Id. That same day, the district court entered judgment in
Haas’s favor.
On February 12, 2016, Pond filed a consolidated motion to reconsider pursuant to Fed. R.
Civ. P. 59(e) and 60(b)(1), and for leave to amend his complaint pursuant to Rules 15 and 59(e).
Pond challenged the dismissal of his § 1983 and declaratory relief claims against Haas in his
individual capacity, arguing that: (1) he was entitled to Rule 59(e) relief because the district court
improperly considered his failure to respond when deciding the motion to dismiss; (2) he was
entitled to Rule 59(e) relief because the district court misconstrued the allegations in his
complaint when determining whether he had sufficiently stated a claim for relief; (3) he was
entitled to Rule 60(b)(1) relief because his attorney’s inadvertent failure in missing the deadline
to respond to the motion to dismiss was excusable neglect; and (4) he should be granted leave to
amend because his proposed amended complaint did not cause any undue delay or prejudice to
Haas. Haas filed a response arguing that Rule 60(b)(1) relief was inappropriate because the
actions of Pond’s attorney did not constitute excusable neglect, and that any amendment by Pond
would be both untimely and futile.
On March 21, 2016, the district court denied Pond’s consolidated motion. The court
refused to consider Pond’s request for Rule 59(e) and Rule 60(b)(1) relief due to his attorney’s
failure to respond, clarifying that it had dismissed Pond’s complaint because either the claims
were barred or the complaint failed to state a claim for relief, not because of his attorney’s error.
The district court summarized the remaining issues as:
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[W]hether plaintiff has shown that the Court erred in dismissing the complaint,
thereby justifying relief under Rule 59(e); and whether, at this post-judgment
stage of the case, justice requires that the Court permit plaintiff to amend his
complaint pursuant to Rule 15.
DE 23, Page ID 150. The district court ruled against Pond on both points.
First, the court found no “clear error of law,” as is required for Rule 59(e) relief. Id.,
Page ID 154. The court reaffirmed its holding that Pond failed to state a claim for deliberate
indifference against Haas because he failed to allege that Haas was personally involved or “knew
of and disregarded” an excessive risk. Id., Page ID 154–56.
Second, the district court rejected the notion that justice required granting Pond leave to
amend his complaint. It noted that Pond had failed to show he was entitled to Rule 59 or Rule 60
relief as required by Leisure Caviar, LLC v. U.S. Fish & Wildlife Service, 616 F.3d 612, 616–17
(6th Cir. 2010), that there was clearly an undue delay, and that Pond had failed to “‘provide a
compelling explanation’ for neither amending nor seeking leave to amend before judgment was
entered.” Id., Page ID 157–59. Looking to Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir.
2002), and Leisure Caviar, 616 F.3d at 616, the district court concluded that allowing Pond to
amend would “sidestep the narrow grounds for obtaining post-judgment relief.” Id., Page ID
159. Pond filed a timely notice of appeal.
II.
A.
We review de novo a district court’s decision to dismiss a complaint under Rule 12(b)(6).
Bickerstaff v. Lucarelli, 830 F.3d 388, 395–96 (6th Cir. 2016). In determining the sufficiency
and plausibility of plaintiff’s claims, we “construe the complaint in the light most favorable to
the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the
plaintiff.” Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting Directv,
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Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, we need not accept as true “a legal
conclusion couched as a factual allegation,” id. at 539 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)), nor must we accept “unwarranted factual inferences,” Treesh, 487
F.3d at 476 (citation omitted).
B.
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This standard “does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
555). A complaint will survive a Rule 12(b)(6) motion if “the plaintiff alleges facts that ‘state a
claim to relief that is plausible on its face’ and that, if accepted as true, are sufficient to ‘raise a
right to relief above the speculative level.’” Handy-Clay, 695 F.3d at 538 (quoting Twombly,
550 U.S. at 555, 570). The facts must “allow[] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. This does not
impose a “probability requirement” but “asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id.
The Eighth Amendment’s prohibition on cruel and unusual punishment extends to actions
by prison officials that constitute “deliberate indifference” towards an inmate’s “serious medical
needs.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004) (citing Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). Deliberate indifference requires a subjective determination
that the official had “a sufficiently culpable state of mind in denying medical care.” Id. (quoting
Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)). There must be more than mere
negligence. The official must have actually known of the serious medical need or
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“circumstances clearly indicating” such a need. Horn v. Madison Cty. Fiscal Court, 22 F.3d
653, 660 (6th Cir. 1994). And by ignoring the medical need, the official must have disregarded
“a substantial risk of serious harm” to the inmate. Garretson v. City of Madison Heights, 407
F.3d 789, 797 (6th Cir. 2005) (quoting Watkins v. City of Battle Creek, 273 F.3d 682, 686 (6th
Cir. 2001)). We have said that a prisoner adequately states a claim for deliberate indifference
“when he alleges that prison authorities have denied reasonable requests for medical treatment in
the face of an obvious need for such attention . . . .” Scott v. Ambani, 577 F.3d 642, 648 (6th Cir.
2009) (quoting Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976)).
C.
Pond makes only two allegations with respect to Haas’s involvement in his medical care.
First, he alleges that Haas had a policy of denying and delaying urgent medical care by way of a
“draconian approval process[].” DE 1, ¶¶ 16–17, Page ID 4. Second, he states that Haas
approved and scheduled his procedure for December 16 after Pond was examined by a medical
professional on November 27. The problem is that neither of these allegations suggests that
Haas was aware of the severity of Pond’s injury. Pond explicitly alleges only that a physician, a
medical professional, and “guards and officers” were aware of his condition. Id. ¶¶ 11, 13, 15.
Pond asks that we reasonably infer that Haas was aware of, and thus deliberately
indifferent to, his broken arm. Although we draw all reasonable inferences in Pond’s favor, the
bare-bones allegations in the complaint make it unreasonable to infer that Haas knew or should
have known that Pond needed surgery prior to December 16.
There is no basis to infer that Haas was directly involved or in any way aware of Pond’s
condition prior to November 27. Pond alleges that between his November 20 and November 27
exams, his surgery was “deliberately not scheduled,” but he does not name Haas (or anyone, for
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that matter) as the person making such a decision.4 Haas is implicated in the decision-making
process only after the November 27 exam. Although this allows us to reasonably infer that Haas
was aware that Pond needed surgery when he allegedly approved the procedure after the
November 27 exam, it is a step too far to assume, without more specific allegations, that Haas
was aware Pond needed surgery prior to that date, or that Haas did anything more than approve
the request. The allegation that he approved the procedure does not create an inference that he
knew the surgery was necessary prior to December 16. Similarly, even if the alleged “draconian
approval process” did exist, it is unreasonable to infer that Haas accounted for Pond’s situation in
implementing that policy.
Furthermore, Pond’s case differs significantly from those in which a claim for deliberate
indifference to a medical need survived a motion to dismiss. In each of those cases, the named
defendant was someone who was alleged to have personally interacted with the plaintiff so as to
have knowledge of their medical need. See Blackmore, 390 F.3d at 894, 900 (finding a triable
issue of fact as to whether sheriff’s deputies who interacted with the plaintiff were deliberately
indifferent to his medical needs); Garretson, 407 F.3d at 794 (considering a motion for summary
judgment by police officers involved with arresting, booking, and monitoring the plaintiff-
inmate); Scott, 577 F.3d at 645, 648 (allowing claims to proceed against doctors who evaluated
and treated the plaintiff for cancer while he was in custody).
Pond relies on Scicluna v. Wells, 345 F.3d 441 (6th Cir. 2003), and Boretti v. Wiscomb,
930 F.2d 1150 (6th Cir. 1991), to argue that the nineteen-day delay between his November 27
examination and December 16 procedure necessarily constitutes deliberate indifference. In
Scicluna, this court considered whether two doctors and a corrections officer failed to provide
4
Pond concedes that he “did not specifically name Haas as the individual denying the prior requests” in his
complaint. CA6 R. 11, at 3.
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sufficient medical care to a prisoner they knew had recently undergone neurosurgery and
required subsequent neurological consultations. 345 F.3d at 443–44. Although the court found a
three-week delay sufficient to constitute a general factual dispute as to deliberate indifference,
the Scicluna record established that the individual defendants knew about the prisoner’s
condition. Id. at 446–47. Similarly, although the Boretti court held that refusing to care for a
post-surgery gunshot wound for five days was sufficient to constitute deliberate indifference, the
finding was premised on the fact that the sole defendant—a nurse responsible for monitoring the
inmate—had refused to treat the plaintiff despite knowledge of his condition. Boretti, 930 F.2d
at 1151–52, 1154. Accordingly, both cases are distinguishable because there is no similar
allegation or reasonable inference to be made here as to Haas’s knowledge of Pond’s condition
or medical need.
Pond attempts to save his case by arguing that knowledge can be imputed to Haas under a
respondeat superior theory because “other personnel were alleged to have been aware of Pond’s
condition.” CA6 R. 11, at 19. Section 1983 liability cannot be imposed solely on this basis.
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). “At a minimum, [Pond] must show that
[Haas] at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional
conduct of the offending subordinate.” Id. (citation omitted). There is nothing here to support
such a showing. Because Pond has not alleged that Haas was sufficiently aware of his injury to
state a plausible Eighth Amendment violation, his complaint fails to state a claim for relief.
III.
A.
We review a district court’s decision to deny post-judgment leave to amend for an abuse
of discretion, unless the district court “bases its decision on the legal conclusion that an amended
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complaint could not withstand a motion to dismiss.” Morse, 290 F.3d at 799. An abuse of
discretion occurs when the district court “commits a clear error of judgment, such as applying the
incorrect legal standard, misapplying the correct legal standard, or relying upon clearly erroneous
findings of fact.” Yeschick v. Mineta, 675 F.3d 622, 628 (6th Cir. 2012) (quoting In re Ferro
Corp. Derivative Litig., 511 F.3d 611, 623 (6th Cir. 2008)). In the context of granting leave to
amend, we have held that a district court abuses its discretion when it “fails to state the basis for
its denial or fails to consider the competing interests of the parties and likelihood of prejudice to
the opponent.” Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986); see also Morse,
290 F.3d at 799.
B.
Leave to amend should be “freely given when justice so requires.” Keweenaw Bay
Indian Cmty. v. Michigan, 11 F.3d 1341, 1348 (6th Cir. 1993) (quoting Fed. R. Civ. P. 15(a)).
A district court, however, may deny leave to amend for “undue delay, bad faith or dilatory
motive on the part of the movant,” if allowing an amendment would place “undue prejudice [on]
the opposing party,” or if the amendment would be futile. Morse, 290 F.3d at 800 (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
Although Rule 15(a) “plainly embodies a liberal amendment policy,” Morse, 290 F.3d at
800, there is a “heavier burden” when requests to amend are made after an adverse judgment,
Leisure Caviar, 616 F.3d at 616. “Following entry of final judgment, a party may not seek to
amend their complaint without first moving to alter, set aside or vacate judgment pursuant to
either Rule 59 or Rule 60.” Morse, 290 F.3d at 799. “Instead of meeting only the modest
requirements of Rule 15, the claimant must meet the requirements for reopening a case
established by Rules 59 or 60.” Leisure Caviar, 616 F.3d at 616.
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1.
Although Pond’s initial motion requested Rule 60(b)(1) relief—which would allow him
to also seek leave to amend—because the actions of his attorney constituted “excusable neglect,”
the district court refused to consider the argument, clarifying that its decision to dismiss the
complaint did not in any way rely on Pond’s attorney’s failure to file a response. Pond’s briefing
on appeal makes only a passing reference to his Rule 60 claim. He does not directly challenge
the district court’s holding. He has thus forfeited this claim. Turner v. City of Taylor, 412 F.3d
629, 639 (6th Cir. 2005).
Even on the merits, the district court did not abuse its discretion in denying Rule 60(b)(1)
relief. We have said that such relief on the basis of “excusable neglect” is appropriate where
“procedural default has prevented the court from considering the true merits of a party’s claim.”
Jinks v. AlliedSignal, Inc., 250 F.3d 381, 386 (6th Cir. 2001). Pond’s attorney’s failure to
respond in no way prevented the district court from properly considering whether his complaint
sufficiently stated a claim for relief as a matter of law.
2.
Pond’s only remaining avenue for relief is to show that the district court abused its
discretion in denying him leave to amend his complaint under Rules 15 and 59. We have said
that when a plaintiff seeks to amend his complaint through a Rule 59(e) motion to amend the
judgment, “the Rule 15 and Rule 59 inquiries turn on the same factors.” Morse, 290 F.3d at 799.
In addition to the Foman factors of undue delay, bad faith, dilatory motive, undue
prejudice, and the futility of the proposed amendment, post-judgment requests to amend require
that the district court “also take into consideration the competing interest of protecting the
finality of judgments and the expeditious termination of litigation.” Morse, 290 F.3d at 800
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(internal quotation marks omitted). This latter inquiry includes asking whether the claimant has
made a “compelling explanation” for failing to seek leave to amend prior to the entry of
judgment. Leisure Caviar, 616 F.3d at 617; Morse, 290 F.3d at 800. It is intended to keep
plaintiffs from using the district court “as a sounding board to discover holes in their arguments,”
and from avoiding the narrow grounds for post-judgment relief under Rules 59 and 60. Leisure
Caviar, 616 F.3d at 616.
The district court determined that Pond had failed to “‘provide a compelling explanation’
for neither amending nor seeking leave to amend before judgment was entered.” DE 23, Page ID
157. It interpreted Pond’s motion as arguing only that leave should be granted so he could
“clarify any perceived deficiency” in his complaint. The court recognized that this was not an
explanation for the delay, much less a compelling one, and in any case, such “sounding board”
arguments had been rejected in Leisure Caviar, 616 F.3d at 617; Kuyat v. BioMimetic
Therapeutics, Inc., 747 F.3d 435, 445 (6th Cir. 2014); and Ricker v. Zoo Entertainment, Inc.,
534 F. App’x 495, 501 (6th Cir. 2013). Although the court stated that there was undue delay, it
ultimately held that the lack of an explanation, along with policy interests in the finality of
judgments and expeditious termination of litigation, was a sufficient basis upon which to deny
Pond’s motion.
On appeal, Pond argues that he offered two “compelling explanations” for not filing an
amended complaint prior to judgment: (1) he “did not believe” that his complaint required
amending; and (2) his counsel’s calendar error prevented him from filing an amended complaint.
Pond’s first explanation is foreclosed by our prior decisions. He cannot rely on the
district court’s opinion to identify deficiencies in his complaint, and it is not an abuse of
discretion for a court to refuse leave to amend on this basis. See Kuyat, 747 F.3d at 444–45
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(finding no abuse of discretion when a district court refused to allow a post-judgment
amendment based on the plaintiffs’ argument that “they had no way of knowing that [a letter]
would factor heavily in the district court’s decision”); Leisure Caviar, 616 F.3d at 616–17
(refusing to find an abuse of discretion when a district court denied the plaintiff’s request to
“reopen the case by amending their complaint to take account of the court’s decision”); see also
Ricker, 534 F. App’x at 501 (refusing to find an abuse of discretion for denying a post-judgment
motion to amend when the plaintiff claimed he was “unaware” of the defects in the complaint
and deserved an opportunity to correct them).5 Pond’s attempt to distinguish his case on the
basis that he and the district court “disagreed in good faith” about the sufficiency of the
complaint is unavailing. Undoubtedly, many plaintiffs would enjoy an opportunity to amend
their complaint after judgment because of a purported good-faith disagreement with the court,
but this is still an attempt to use the district court as a vehicle to identify pleading deficiencies.
As to the second explanation, Pond argues that the district court “ignored its own record”
by failing to consider whether his counsel’s calendar error was a sufficiently compelling reason
for not seeking pre-judgment leave to amend. CA6 R. 11, at 29. This is not the case. In his
affidavit, Pond’s counsel stated that the “due date for [Pond’s] response or to amend the
complaint was inadvertently never placed on [counsel’s] calendar, which led to [his] failure to
respond.” DE 20-1, Page ID 97. This was repeated in the statement of facts supporting Pond’s
motion for leave to amend. Pond, however, never proffered the calendaring problem as a reason
for why he should be granted leave to amend his complaint under Rules 15 and 59. In justifying
5
Pond argues that Kuyat and Ricker are inapplicable because both were securities cases that invoked standards
under the Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. § 78u-4 et seq. Although he is
correct that these cases did invoke the PSLRA, there are still two problems with this argument. First, we have
reiterated the “sounding board” argument outside the securities-litigation context. See Leisure Caviar, 616 F.3d at
616–17. Second, the Kuyat court found that using the court as a sounding board was prohibited under “Rule 15’s
permissive amendment policy,” and invoked the PSLRA only to support its holding. Kuyat, 747 F.3d at 445.
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his request to file an amended complaint, he argued only that there would be neither undue delay
nor prejudice to Haas because he filed his motion within four days of the deadline for a timely
request, and that he deserved leave to amend “to clarify any perceived deficiency of his
allegations against Haas.” Id., Page ID 92. Pond did discuss the calendaring error with respect
to his claim for Rule 60(b) relief, as well as his claim that the court held his failure to respond
against him in evaluating the motion to dismiss, but he never introduced it as a “compelling
explanation” to support his request for leave to amend. As we have recognized, “the failure to
present an issue to the district court forfeits the right to have the argument addressed on appeal.”
Armstrong v. City of Melvindale, 432 F.3d 695, 699–700 (6th Cir. 2006). And an issue is
forfeited if it is “merely mentioned and not developed.” United States v. Clark, 469 F.3d 568,
569–70 (6th Cir. 2006). Because Pond did not raise the calendaring argument before the district
court, we need not consider it here.
Because the district court properly considered the issues before it in a manner consistent
with our precedent, there is no basis for us to find that the district court abused its discretion in
refusing Pond’s motion for post-judgment leave to amend.
IV.
The district court did not improperly sanction Pond for failing to respond to Haas’s
motion to dismiss. The court was clear that it was making a legal determination about the
sufficiency of the complaint. Furthermore, Pond has not cited any of our past decisions that
would support his claim that the district court erred by entering judgment at the same time it
granted the motion to dismiss, and Pond concedes that we do not have a policy against a district
court entering judgment after its first order of dismissal. Finally, because we are reviewing the
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sufficiency of Pond’s complaint de novo, any alleged impropriety in the basis for the district
court’s decision or its characterization of the complaint is irrelevant.
V.
For the foregoing reasons, we affirm.
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