Smith v. United States

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 30, 2017
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Elisabeth A. Shumaker
Clerk of Court
DENNIS LEON SMITH; BRUCE CLYDE
SMITH,
Plaintiffs - Appellants,
v. No. 17-1225
(D.C. No. 1:17-CV-00950-LTB)
UNITED STATES OF AMERICA, and all (D. Colo.)
parts thereof, its 50 several STATES and
all political subdivisions thereof, JOHN
and JANE DOES,
Defendants - Appellees.
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ORDER AND JUDGMENT*
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Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
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Dennis and Bruce Smith appeal the district court’s dismissal of their pro se
complaint due to their failure to comply with the court’s order to cure deficiencies.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
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
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 This order and judgment is not binding precedent,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.
I
On April 18, 2017, the Smiths submitted a pro se document to the district court
titled “Complaint Amended Declaratory Judgment and Mandatory Injunction Ending the
conflict between the Lex Loci and the Lex Fori and Merging them together for a Remedy
in Law.” The district court entered an order directing the Smiths to pay the filing fee or
submit a motion to proceed in forma pauperis, and to submit a pleading on the court-
approved complaint form. Despite the order’s warning that failure to cure these
deficiencies within thirty days would result in dismissal of the complaint, the Smiths
failed to do so. The court thus dismissed the action without prejudice pursuant to Fed. R.
Civ. P. 41(b) for failure to comply with the order and for failure to prosecute. This timely
appeal followed.
II
A district court may sua sponte dismiss an action for “fail[ure] . . . to comply with
. . . a court order.” Fed. R. Civ. P. 41(b); see Olsen v. Mapes, 333 F.3d 1199, 1204 n.3
(10th Cir. 2003). We review a district court’s dismissal for failure to comply with a court
order for abuse of discretion. See Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir.
2003). Although a district court must consider certain criteria before dismissing an action
with prejudice for failing to comply with an order, it may dismiss without prejudice
“without attention to any particular procedures.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1162 (10th Cir. 2007).
We conclude the district court appropriately exercised its discretion. It gave the
Smiths an adequate opportunity to comply with its order and provided them with specific
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instructions. Although the Smiths filed a document within the thirty-day window
provided by the district court, it was largely nonsensical and failed to address the specific
deficiencies identified. The Smiths filed a document titled “Supreme Court Review; 28
USC 1291,” which appears to be a mock Supreme Court order signed by both plaintiffs in
which they represent themselves as “Holding office in and for the Country of the said
United States.” As the district court noted, impersonation of a federal officer may violate
18 U.S.C. § 912 and could be subject to criminal penalties.
On appeal, the Smiths similarly submitted a document titled “Supreme Court
amended Declaratory Judgment and Mandatory Injunction” in which they identify
themselves as “Holding office in and for the Country of the said United States.” This
filing fails to advance any coherent argument with respect to the district court’s ruling.
Although “[a] pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers,” we cannot “assume the role
of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Because the Smiths’ filing “contain[s] no argument of substance,” they have
forfeited their right to review. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005).
III
AFFIRMED. Because the Smiths have failed to advance “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), we DENY their motion to
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proceed in forma pauperis. We remind the Smiths of their obligation to pay the filing fee
in full.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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